The Supreme Court ruled today in two cases that could have major implications for how social media platforms operate and how governments can intervene on behalf of political speech on these platforms.
case(NetChoice v. Paxton and Moody’s v. NetChoice) was proposed by two technology industry trade groups, NetChoice and the Computer and Communications Industry Association, which opposed social media moderation laws in Florida and Texas.
The court unanimously reversed rulings by the Eleventh and Fifth Circuits — upholding a preliminary injunction on the Florida law (holding that it may indeed violate the First Amendment) and overturning the Texas law. Preliminary injunction (finding it unlikely to violate the First Amendment). The court held that while much analysis still needs to be done, that analysis must be “consistent with the First Amendment, which does not take a vacation when it comes to social media.”
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“Separate from First Amendment Merits”
This is not the devastating blow to these laws that many free speech advocates (myself included) had hoped for. But the court did admonish the Fifth Circuit for its faulty interpretation of the First Amendment. The Supreme Court’s own analysis supports the tech groups’ position that social media platforms engage in protected expression when they decide what content is allowed and how it is presented.
“As long as social media platforms create expressive products, they are protected by the First Amendment,” Justice Elena Kagan wrote in the court’s opinion:
Although these cases are preliminary, the current record suggests that some platforms, at least in some functions, do engage in expression. When building certain feeds, these platforms choose which third-party voices to display and how to display it. They include and exclude, organize and prioritize—and, in making millions of these decisions every day, generate their own unique compilations of expression. While much of the social media content is new, the nature of the project is something the court has seen before. Traditional publishers and editors also co-opt expressions from other parties and shape them into their own curated speech products. We have repeatedly argued that laws limiting their editorial choices must comply with First Amendment requirements. This principle has not changed as curated compilations have moved from the physical to the virtual world. In the latter, as in the former, the government’s efforts to alter the editorial compilation of third-party expressions must be subject to judicial review to ensure compliance with the First Amendment.
Chief Justice John Roberts, Justices Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett fully agreed with Kagan. Justices Cotanji Brown Jackson, Clarence Thomas, Samuel Alito and Neil Gorsuch concurred in the decision but did not entirely agree with the main opinion.
The court noted that the Texas and Florida laws “limit platforms’ ability to engage in content moderation—filtering, prioritizing, and labeling the kinds of messages, videos, and other content users wish to post” and that they “require The platform can provide users with personalized explanations if they delete or change their posts. NetChoice “challenged both laws on their face — as a whole, not against specific apps. “
“Today, we reverse both rulings for reasons unrelated to the First Amendment merits because neither appeals court properly considered the facial nature of NetChoice’s challenges,” Kagan wrote.
The court primarily addressed the parties’ concerns. Both sides argue these cases primarily as if the laws only apply to curated feeds provided by the largest, most paradigmatic social media platforms — as if each case raises applicable challenges posed by Facebook’s protest of its loss of control the content of its News Feed. But this court’s argument suggests that these laws may apply to, and have a different impact on, other types of websites and apps. In a facial challenge, this is important even if the challenge is filed under the First Amendment. As discussed below, the question in this case is whether the unconstitutional application of the law is substantive as compared with the constitutional application. To make such a determination, a court must determine a law’s full suite of applications, assess which ones are constitutional and which are not, and compare one with the other. Neither court conducted the necessary investigation.
Of course, to do this correctly, courts must understand what kind of government action the First Amendment prohibits.
But about the virtues of the First Amendment…
On a brighter note, the court rebuked the Fifth Circuit for saying the Texas law did not actually address speech, and advanced its argument: The laws not only regulate speech but are likely to do so in an impermissible way. From the main comments:
Contrary to the 5th Circuit’s thinking, the current record shows that Texas law does regulate speech when applied in ways both parties focus on, namely, that when applied, it prevents Facebook (or YouTube) from using its content moderation Standard delete, change, organize, prioritize, or discard posts in their News Feed (or Home Page). The law, then, completely blocks the kind of redaction decisions this Court has previously made to obtain First Amendment protection. It prevents platforms from compiling the third-party speech they want in the way they want, thereby failing to deliver an expressive product that best reflects their own views and priorities. What’s more, the law — again, in its specific application — is unlikely to survive First Amendment scrutiny.
During oral arguments in the case in February, Supreme Court justices appeared to have expressed doubts about the constitutionality of the laws.
It doesn’t take a legal genius to understand why. Laws in Texas and Florida bar social media platforms from engaging in certain types of content moderation, passed at a time when concerns about tech companies’ bias against conservatives are at a fever pitch. Florida law prohibits large platforms from removing or suppressing content by or about political candidates, or from taking action against any journalist or media business “based on content they publish or broadcast.” Texas law prohibits viewpoint-based suppression or blocking of content on large social platforms and declares these platforms “public carriers.” In effect, these laws enforce speech and force private companies to broadcast messages that they may wish to dissociate themselves from.
Supporters of the Texas and Florida laws argue that because some social media policies do not promote free speech, we need the government to step in and enforce more pro-speech policies on these platforms. This is a very ironic position that would be comical if it weren’t so common now.
Of course, private companies can encourage or discourage culture Freedom of speech, I prefer the former. But ultimately, they are private Companies can set their own rules, and users who don’t like them can take their messages elsewhere. The First Amendment does not guarantee any of us the right to say anything in any private space. It prevents governments from shutting down or coercing our speech. You can’t “protect free speech” by letting the government decide what has to be said.
Refute the idea that the law does not regulate speech
Although social media laws in Florida and Texas have not been completely defeated, the Supreme Court’s ruling is still good news for defenders of free speech online. (NetChoice certainly sees this as a victory.) The courts have left no doubt that at least some of these laws violate our First Amendment rights.
Kagan’s opinion flatly rejects the thinking behind the Florida and Texas laws, noting that courts have repeatedly held that “it is not the government’s responsibility to decide what is the right balance of private expression – ‘eliminate prejudice’. Its thinking is biased, rather than leaving this judgment to the speaker and his or her audience.
It also provides guidance on how to apply the First Amendment, saying the need for that guidance is “particularly apparent to the Fifth Circuit, which has held that the content choices made by major platforms for their primary feeds are fundamental.’ not speech’, so states can regulate them so they are not subject to First Amendment restrictions” and “even if these activities are expressive, Texas’ interest in better balancing the marketplace of ideas will be satisfied First Amendment Review.
Kagan wrote that the Fifth Circuit’s analysis was based on a “serious misunderstanding of First Amendment precedent and principle.” “The Fifth Circuit’s conclusion is wrong.
Texas’ restrictions on platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression. The court erred in treating Texas’ interest in changing the content of the platform’s feed as valid.
Kagan did offer a caveat: “Nothing said here addresses any other applications of the law that may or may not present First Amendment issues as described below.” Here’s What’s Next for the Court of Appeals What must be reviewed.
More sex and tech news
• Etsy is cracking down on pornography. The company announced last week that it would ban the sale of most sex toys as well as merchandise or models that depict nudity or sexual acts.
• “The House Energy and Commerce Committee unexpectedly canceled plans to discuss nearly a dozen bills” last Thursday, Law 360 Report. The plan includes controversial measures such as the Children’s Online Safety Act and the U.S. Privacy Act.
• In a new court brief, a group of civil liberties and free press groups, including the Electronic Frontier Foundation, the Freedom of the Press Foundation, TechFreedom and the Center for Democracy and Technology, oppose the Foreign Adversary Controlled Applications Act, also known as the Foreign Adversary Controlled Applications Act Control Applications Act. The groups “urged the court to see the bill for what it is: a blanket ban on free speech that invites First Amendment scrutiny.”
• Dan Brooks believes social media has flattened slang and we’re all worse off for it. It “standardizes our language to the point where informational expressions are endangered. Over the past decade, a vast array of formerly informational, subcultural slang in English has been dispersed into a single, universal lingo: phone.”
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