The US Supreme Court did an awful lot of Very Bad Things this past week. You don’t need me to get into that, the entire Internet is screaming about it, with much justification. They also did at least one not so bad thing, and that was this.
The U.S. Supreme Court sent the legal challenge to a Texas social media law back to a lower court, sidestepping a landmark ruling for now.
The legal battle centers on Texas’ law preventing large social media companies from censoring users’ content based on their political viewpoints.
On Monday, the Court said the 5th U.S. Circuit Court of Appeals had not properly analyzed the full scope of the legal challenge and redirected the case back to the lower court for relitigation. The Supreme Court sent a similar Florida case back to the Eleventh Circuit. Both states’ laws will remain blocked while the challenge continues.
Writing for the majority, U.S. Supreme Court Justice Elena Kagan said neither court had fully considered how far the Florida and Texas laws could reach.
“The question in such a case is whether a law’s unconstitutional applications are substantial compared to its constitutional ones,” Kagan wrote. “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.”
Texas’ 2021 law, called House Bill 20, was championed by Republican state leaders in an effort to combat a perceived anti-conservative bias on social media platforms — a sentiment further spurred by social media platforms, including Facebook and Twitter, suspending former president Donald Trump from their platforms after the Jan. 6, 2021 riots at the Capitol.
The suit was filed by NetChoice and the Computer & Communications Industry Association who argued that social media have a First Amendment right to manage the content on their platforms and select the types of speech they deem appropriate — similar to curated publishing platforms like newspapers. And tech companies say that allowing government control over their content could lead to a surge of misinformation, which would be detrimental to users.
In a Monday morning statement, CCIA President Matt Schruers said he was pleased that the court seemed to recognize the First Amendment challenges in Texas and Florida’s social media laws.
“We are encouraged that a majority of the Court has made clear that the government cannot tilt public debate in its favored direction,” the statement said. “There is nothing more Orwellian than government attempting to dictate what speech should be carried, whether it is a newspaper or a social media site.”
See here for the previous update. I’ll leave it to Rick Hasen to explain what this means.
As I first explained at Slate back in February, Moody concerns a pair of laws, one from Florida and one from Texas, that regulate different aspects of social media. Among the most important provisions in each of the laws is a limit on content moderation. The state laws differ in their particulars, but both were motivated by the removal of Donald Trump from major social media platforms after the violence of Jan. 6, 2021, and a general complaint that the platforms were unfairly “censoring” conservative voices on their platforms. A coalition of internet companies, NetChoice, challenged the laws claiming they violated the First Amendment. The U.S. Court of Appeals for the 11th Circuit put key parts of the Florida law on hold but the 5th Circuit allowed Texas’ law to go forward pending further proceedings—an action the Supreme Court reversed as it considered these issues.
In Monday’s opinion in Moody, the Supreme Court was unanimous in holding that the way that NetChoice litigated its cases was not proper. It had brought a “facial” challenge to the law under the First Amendment, which essentially requires showing that in almost any way that the state might try to enforce its law, doing so would be unconstitutional. The justices agreed that these laws were very complex and the issues were not fully developed. As Justice Elena Kagan explained for the majority, the cases were litigated as if it was just about whether Facebook could curate its news feed. But it was not clear how this law might apply to Gmail, or Etsy, or Venmo. The case is going back for better legal and factual development to both courts.
That’s where the agreement among the justices ended. Speaking for herself, Chief Justice John Roberts, and Justices Amy Coney Barrett, Brett Kavanaugh, and Sonia Sotomayor, Kagan gave guidance on where the 5th Circuit went wrong in its First Amendment analysis in considering the constitutionality of the Texas content moderation decisions. None of this was necessary for the decision (in legal parlance, it was “dicta”), but the court addressed the issue because “[i]f we said nothing about those views, the court presumably would repeat them when it next considers NetChoice’s challenge.” The other justices would not have reached the First Amendment merits, although Alito expressed some serious reservations about the analysis.
Kagan’s guidance relied heavily on a 1974 case, Miami Herald v. Tornillo, in which the court held unconstitutional a Florida law that required newspapers to print the reply of someone who had been criticized in the newspaper. The court held that private actors like newspapers have every right under the First Amendment to include or exclude content as they see fit.
To Kagan, social media companies in moderating content were just like newspapers. She said that curating content is expressive activity protected by the First Amendment and that includes the decision to exclude content and that this principle is true even if most content is allowed and just a little bit is excluded. Further, when it comes to laws regulating speech, “the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas.” Were the rule otherwise, Kagan asserted, the platforms could be forced by Texas law to carry bad content including posts that “support Nazi ideology; advocate for terrorism; espouse racism, Islamophobia, or anti-Semitism; glorify rape or other gender-based violence; encourage teenage suicide and self-injury; discourage the use of vaccines; advise phony treatments for diseases; [and] advance false claims of election fraud.”
I for one appreciate Justice Kagan’s list of horrors; I hope they left a particularly bad taste in Ken Paxton’s mouth. The main point here is that SCOTUS said that social media sites are more like newspapers than telephones, which is what Texas and Florida wanted. That doesn’t always turn out for the best, as the site formerly known as Twitter clearly shows, but on balance it’s the right answer. It doesn’t come close to making up for the raw sewage that SCOTUS spewed at us recently, but it’s what we have.