The US Supreme Court this month declined to rule on whether Florida and Texas laws limiting social media platforms’ content moderation violates the First Amendment, sending the issue back to the lower courts. But in doing so, its guidance strongly suggested that modern day social media communications—including how they are shaped by the platforms where they appear—receive full, time-honored protections of the First Amendment.
Though technically a remand for further deliberation, this decision rings loudly for the future of our communication modalities.
In Moody v. NetChoice , the Supreme Court reviewed two cases out of Florida (the federal Eleventh Circuit) and Texas (the federal Fifth Circuit). Both states enacted laws in 2021 that limited large tech companies’ ability to moderate user content.
Tech industry trade groups, whose members include Alphabet Inc., Meta Platforms Inc., and X Corp., sued Florida in federal court, arguing that the law violated the First Amendment. Both district courts agreed with the trade groups, blocking enforcement of the law.
The US Court of Appeals for the Eleventh Circuit then affirmed in favor of the trade groups. Meanwhile, the US Court of Appeals for the Fifth Circuit concluded the opposite, ruling in favor of Texas on its similar law.
On appeal, the Supreme Court unanimously vacated both decisions. However, the underlying opinions weren’t uniform. Each justice either joined in the majority or at least concurred in the judgment, but their reasoning varied.
Writing for the court, Justice Elena Kagan said the lower courts had applied the wrong analysis. She drew a distinction between a law that’s unconstitutional on its face and one that’s unconstitutional only as applied in certain circumstances. For example, it’s possible that the laws could be constitutional as applied to platforms such as Uber or Venmo, which aren’t primarily social media platforms—even if they are unconstitutional as applied to YouTube, TikTok, X, or Meta.
Although the court punted on the merits of the laws’ constitutionality, Kagan cautioned that the lower courts’ analyses going forward “must be done consistent with the First Amendment, which does not go on leave when social media are involved.”
She warned that the law’s application as to social media platforms is “unlikely to withstand First Amendment scrutiny” given that the court has repeatedly held “that it is no job for government to decide what counts as the right balance of private expression—to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.”
The heart of the issue for the majority is that moderating, curating, and editorializing content is fully protected by the First Amendment. Just as private individuals and companies generally have the First Amendment right to say whatever they wish without government interference, they also may editorialize, curate, and moderate content on their own platforms, according to the opinion of the court.
Those familiar with the First Amendment law in Florida might recall the Tornillo case from a half century ago. Florida tried to require newspapers to allow a political candidate a “right of reply” to any criticisms in the newspaper. The Supreme Court voided that law, finding that media editors had the First Amendment right to choose what gets published.
Kagan indicated that cases such as Tornillo will control the fate of these laws because social media companies, like newspapers, are private companies with full First Amendment rights. This view is in stark contrast with the Fifth Circuit’s position (and perhaps a position favored by a minority of the Supreme Court) that social media companies are “common carriers” that must allow all consumers on board, so to speak.
Kagan further observed that cable companies, which carry content such as newspapers and social media companies, are protected by the First Amendment, in an apparent rejection of the “common carrier” argument.
Meanwhile, the concurring opinions all focused on the difficulties presented by facial challenges to laws. Justice Amy Coney Barrett’s concurrence explained “the dangers of bringing a facial challenge” and suggested that an as-applied challenge would allow courts to home in on specific platform and function issues that might bear on the First Amendment analysis. Relatedly, Justice Ketanji Brown Jackson’s concurrence discussed the “high bar for facial challenges” brought before the Supreme Court and recommended that the court “strive to avoid deciding more than is necessary.”
Justice Clarence Thomas’s concurrence broke down problems that facial challenges pose, including to the Supreme Court’s case-or-controversy jurisdiction and the balance of power among the three branches of federal government and federal and state governments. Considering the many problems presented, Thomas urged the majority to “discontinue the practice of facial challenges.”
Justice Samuel Alito’s concurrence aimed to provide more details regarding the Florida and Texas laws at issue and the underlying litigations. It also took issue with the majority going beyond the question presented—whether the laws are facially unconstitutional—and addressing specific provisions as applied to two social media platforms.
None of the concurring justices appeared to expressly contradict the majority’s thesis. It is uncertain whether the justices who didn’t join in the majority opinion in Moody would join in Kagan’s reasoning on the merits if these cases (or another like them) return to the high court in the proper posture. Notably, Justices Neil Gorsuch, Thomas, and Alito expressed an interest in seeing the “common carrier” argument developed further by the lower courts.
For now, both states’ laws remain blocked while the litigation resumes in the lower courts. Several years may pass before either or both cases make it back to the Supreme Court. By then, the cases should be properly teed up for a decision on the merits, and Kagan has already previewed that Florida and Texas will face an uphill battle in defending the laws.
The case is Moody v. Netchoice, LLC , U.S., No. 22-277, decided 7/1/24.
*This was republished with permission from Bloomberg Law. Click to access the publication.
