The First Amendment still imposes some limits on the government’s ability to control what content appears online. On July 1, the United States Supreme Court issued its opinion in Moody v. NetChoice and NetChoice v. Paxton, two critical cases addressing the future of speech on the internet. These cases focused on Florida’s and Texas’ (respectively) laws seeking to regulate large social media platforms with respect to content moderation. NetChoice challenged both laws arguing that they violated the First Amendment of the United States Constitution. The Supreme Court granted review in the cases to address two questions: (1) whether the content moderation restrictions in the laws violate the First Amendment; and (2) whether the laws’ requirements of individualized explanations for content removal or alteration violate the First Amendment.
In its ruling, the Supreme Court vacated the lower court rulings in both cases, stating that those courts did not properly address the legal question raised – whether the laws were facially unconstitutional. Indeed, all of the Justices agreed on that result. While the result is simply a return of the cases to the lower courts for further proceedings, the Court majority did set forth some specific significant guidelines and reaffirmed precedent relating to the government’s ability to regulate conventional – and now new – types of media.
Three Takeaways from the Court’s Ruling
While the Court recognized the uniqueness and ubiquitousness of the internet and social media, it ultimately found that existing law, and prior precedent, provided clear standards that could apply, notwithstanding that the cases involved new and ever-expanding technology.
First, the Court pointed out that prior precedent set forth the analysis that the lower courts must undertake to evaluate the facial challenge to these (and any other future similar) laws under the First Amendment: (1) determine the complete scope of the law including what activities it prohibits or regulates and (2) determine which of these applications violate the First Amendment and measure them against the applications that do not. The Court found that the lower courts failed to do this, and this will be the job of those courts going forward in both cases.
Second, six of the justices agreed that the Fifth Circuit, when ruling on Texas’ law, did not properly analyze the First Amendment issues. As Justice Kagan wrote, “The Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression.” This is welcome news for platforms and other internet-based websites. Contrary to what the states argued below, the Court clarified that a platform’s selection of what content to provide or not provide is a form of expression protected by the First Amendment. Content moderation, prohibiting certain types of posts, and following its own community guidelines all remain viable practices for websites. Notably, the Court stated it was not addressing moderation through algorithms based solely on how a user acts online and content that the user, by his or her choices, appears to want. The Court further noted that this discussion about the Texas law’s content-moderation provisions should be informative when the lower courts analyze the individualized explanation portions of the Florida and Texas laws under the First Amendment.
Third, while Justice Kagan’s opinion did not break any new legal ground, it reaffirmed Supreme Court precedent that the government cannot control editorial choice or selection of material. While the concept of stare decisis (the weight given to prior precedent) may have taken a hit over the last few years, Justice Kagan followed prior precedent involving newspapers, cable operators, and parade organizers, and applied it to the “new” area of online speech.
This opinion signals to lower courts that the First Amendment continues to offer protection – including to websites and social media platforms – when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude. Earlier Supreme Court precedents “make that point repeatedly.”
Conclusion
On a practical level, while we did not receive the finality many wanted, and this issue will more than likely reach the Supreme Court again, there are two potential immediate impacts this ruling could have. First, the Supreme Court provided some significant statements in favor of protecting platforms and websites facing complaints and actions by governmental entities about content they are hosting, have removed, or have “shadow-banned.” Second, while the ways in which people communicate are rapidly changing, the Supreme Court has laid out the specific guidelines for analyzing these and similar statutes, seeking to regulate the new technologies involved. This also provides a roadmap for the parties as well as, potentially, for other states looking to regulate social media platforms.
Notably, the Supreme Court did not rule on several other percolating issues that could impact social media platforms and other internet websites, including the continuing viability and extent of the immunity afforded under Section 230 (although it was briefly mentioned by Justice Alito in his concurring opinion). That section precludes liability for online platforms and websites (among others) for publication-related torts based on content created by third parties.
Given that 2024 is an election year, and this remains a hotly contested political issue, we may see additional attempts by states to either regulate or protect social media platforms and websites. But until that time, and until the Supreme Court weighs in on the merits, websites and social media platforms can breathe a little easier – for now.
