Lawfare: In NetChoice Cases, SCOTUS Reaffirms Limits to Government Intervention With Online Speech

Despite the “inescapable” nature of social media, as Justice Elena Kagan wrote for the majority, courts have a “necessary role” in safeguarding platforms’ free speech rights. “To the extent that social-media platforms create expressive products, they receive the First Amendment’s protection,” Kagan wrote.

At issue are laws passed by Texas and Florida that restrict the ability of large platforms to moderate content. The Texas law states that social media platforms “may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person” based on their viewpoints or geographic location. The Florida law is somewhat more targeted, prohibiting platforms from “willfully deplatform[ing] a candidate for office,” shadowbanning posts about candidates, engaging in censorship of “journalistic enterprises,” and inconsistently enforcing its standards.

Technology trade group NetChoice filed lawsuits in each state, arguing that the laws are facially unconstitutional, rather than asserting that they are unconstitutional as applied only to certain services. The appellate courts were divided as to the constitutionality of the restrictions. The U.S. Court of Appeals for the Eleventh Circuit concluded that the Florida moderation restrictions were likely unconstitutional, with Judge Kevin Newsom writing that platforms’ “so-called ‘content-moderation’ decisions constitute protected exercises of editorial judgment.” But the Fifth Circuit upheld the Texas law, with Judge Andrew Oldham writing that “we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”

Justice Kagan declined to rule on the merits of the First Amendment claims, reasoning that the lower courts failed to consider the range of online services to which the moderation restrictions apply, a required step for facial challenges. The lower courts had focused on public-facing social media feeds, but at oral argument in February, justices also were interested in other applications, such as direct messages. “The online world is variegated and complex, encompassing an ever-growing number of apps, services, functionalities, and methods for communication and connection,” Kagan wrote. “Each might (or might not) have to change because of the provisions, as to either content moderation or individualized explanation, in Florida’s or Texas’s law.”

All nine justices agreed to send the case back to the circuit courts for more analysis, but Kagan’s majority opinion was joined fully by only four of her colleagues: Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett. (Justice Ketanji Brown Jackson signed on to part of Kagan’s majority).

Although the Court sent the cases back for the Fifth and Eleventh Circuits to analyze the application to the various online services, Kagan firmly rejected some core underpinnings of Oldham’s analysis. “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,” Kagan wrote.