Supreme Court orders new look at Texas, Florida social media laws

Washington — The Supreme Court on Monday ordered lower courts to take another look at a pair of laws from Florida and Texas that imposed restrictions on how social media companies can moderate the content posted to their platforms, keeping the laws blocked during the additional proceedings.

Justice Elena Kagan delivered the court’s opinion, which tossed out lower court rulings and sent the two cases back for the proceedings. The court said neither lower court conducted the proper analysis of the First Amendment challenges to the laws regulating major social media platforms. There were no noted dissents, although some justices concurred in part. 

“[T]he question in such a case is whether a law’s unconstitutional applications are substantial compared to its constitutional ones. To make that judgment, a court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other,” Kagan wrote. “Neither court performed that necessary inquiry.”

The Florida law

The case out of Florida concerns a Republican-backed law enacted in 2021 that regulates social media platforms that make at least $100 million annually or have at least 100 million monthly users. The law aims to combat claims of censorship by restrictions for companies, such as prohibiting them from engaging in certain types of content moderation and requiring them to notify a user if their post is removed or altered. The platforms must also make general disclosures about their operations and policies.

Two trade associations, whose members include Google, Meta and X, challenged the law in federal court in 2021, arguing that it violated the First Amendment. A district court blocked enforcement of the measure, siding with the trade associations. Florida then appealed the decision to the U.S. Court of Appeals for the 11th Circuit, which likewise sided with the trade groups. 

The Texas law

The case concerns a Republican-backed law in Texas that regulates platforms with more than 50 million active monthly users. The law imposes rules for content moderation and requires platforms to notify users when posts are removed and provide an explanation. The platforms are also required to disclose how they moderate their content and make clear how they prioritize posts through their algorithms.

Two online trade associations, whose members include Google, Meta and X, challenged the law in federal district court in 2021. That court blocked enforcement of certain provisions of the law, and the U.S. Court of Appeals for the 5th Circuit halted the order, allowing the law to take effect.

The trade associations then sought emergency relief from the Supreme Court, which voted 5-4 to block the Texas law while legal proceedings continued. The 5th Circuit later reversed the district court’s preliminary injunction, finding that the social media platforms’ efforts to moderate content are not speech protected by the First Amendment.

The Supreme Court’s decision

Kagan explained that the high court vacated both decisions for reasons “separate from the First Amendment merits” because neither of the appeals courts properly considered the nature of the challenge. Noting that the parties primarily focused on the effects the laws could have on traditional social media feeds, Kagan said that arguments “revealed that the laws might apply to, and differently affect, other kinds of websites and apps.” During oral arguments in February, the justices questioned whether the laws would apply to other platforms like Uber and Etsy.

“In sum, there is much work to do below on both these cases, given the facial nature of NetChoice’s challenges,” Kagan wrote, referring to the group representing the social media companies. “But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”

The challengers chose to litigate the case by arguing that the laws were unconstitutional in all of their applications, and that the decision “comes at a cost,” Kagan wrote, adding that the court has made these kinds of challenges “hard to win.” Kagan’s opinion was joined in full by Chief Justice John Roberts, Justice Sonia Sotomayor, Justice Brett Kavanaugh and Justice Amy Coney Barrett.

Kagan wrote that each court must “evaluate the full scope of the law’s coverage,” and then decide “which of the law’s applications are constitutionally permissible and which are not,” and finally weigh them against each other.

Despite ordering the cases back to lower courts, that didn’t stop the justices from delivering criticism and making suggestions about the deeper issues. Kagan wrote that in some applications, the Texas law is “unlikely to withstand First Amendment scrutiny,” adding that the 5th Circuit’s decision “rested on a serious misunderstanding of First Amendment precedent and principle.”

In a concurring opinion, Barrett stated even more clearly that “the Eleventh Circuit’s understanding of the First Amendment’s protection of editorial discretion was generally correct,” referring to the Florida case, while in the Texas case, “the Fifth Circuit’s was not.”

Justice Samuel Alito, though he concurred in the judgment, wrote that the court’s description of the Florida and Texas laws and the litigation “leaves much to be desired,” calling its broader suggestions “unnecessary and unjustified.” Justice Neil Gorsuch and Justice Clarence Thomas joined Alito’s concurring opinion.

Social media and free speech

The 2021 laws came in response to what their GOP backers saw as discrimination by social media platforms against conservative viewpoints, claims that were amplified after Facebook and Twitter, now known as X, banned former President Donald Trump from their platforms after the Jan. 6, 2021, attack on the U.S. Capitol. 

The states have argued that social media companies should be treated like any business and be restricted from removing posts or banning users from their platforms based upon their views. The platforms, Florida’s attorney general said, serve as hosts to users’ posts and abused their “market dominance” to suppress speech.

But the social media companies asserted that the laws infringe upon their First Amendment rights by denying them editorial control over their platforms and forcing them to publish speech they don’t want to disseminate. The companies argued they exercise editorial discretion like newspapers and other publishers, and said the laws’ requirements seek to chill those judgments.

Both the Biden administration and Trump weighed in on the dispute, underscoring the political divisions in the debate over alleged censorship by tech companies.

Trump backed the state laws, arguing that a platform’s “decision to discriminate against a user” is not protected by the Constitution. The Biden administration, meanwhile, supported the tech groups’ challenges. It argued in part that the high court has repeatedly held that the presentation of speech generated by others is protected under the First Amendment, like the opinion pages of newspapers.

The disputes were among several before the Supreme Court this term that stood at the intersection of social media and free speech. 

In March, the high court said public officials may be sued for blocking constituents on social media and laid out the parameters for when they may expose themselves to liability under the First Amendment. 

The Supreme Court also heard a dispute over the Biden administration’s efforts to pressure social media companies to remove or suppress content it believed spread misinformation during the COVID-19 pandemic and in the wake of the 2020 election. On Wednesday,  the justices determined that the users and the states did not have the legal right to seek an injunction against the Biden administration over its contacts with the platforms. 

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