The Supreme Court punted on cases challenging Texas and Florida laws that regulate social media platforms’ content moderation practices.
The case raised questions of whether Facebook, X/Twitter, YouTube and other platforms were neutral gatekeepers of third party content, or whether their content moderation practices were the kind of expressive activity protected by the First Amendment.
The high court justices sent the cases back to lower courts to more fully analyze First Amendment implications.
The two laws were rooted in the idea that major platforms stifled conservative viewpoints.
The Florida law prohibits platforms from banning or suspending the accounts of candidates for public office. It also prohibits the restriction of accounts engaged in “journalistic enterprise.” The Texas law prohibits social media platforms from taking down content that is based on a viewpoint. Both laws allow users to sue the platforms for damages. They also require that platforms disclose their content moderation decisions.
NetChoice, an industry group representing major platforms, challenged the laws.
“Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge,” Justice Elena Kagan wrote. “The courts mainly addressed what the parties had focused on.”
The court vacated two appellate court rulings.
Kagan wrote that “the 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. Neither court performed that necessary inquiry.”
Kagan noted that “this Court has many times held, in many contexts, 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. That principle works for social-media platforms as it does for others.”
She added, “In sum, there is much work to do below on both these cases, given the facial nature of NetChoice’s challenges. But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”
