The Florida and Texas laws essentially banning large social platforms from moderating political speech aren’t dead yet, but they're inching closer to the grave after the Supreme Court held unanimously that lower courts should revisit them with the First Amendment in mind.
The opinion (PDF) released Monday amounts to a recipe to toss both laws on the grounds that content moderation by social platforms represents expressive speech—editorial judgments about what to keep, uprank, downrank, or delete—and therefore states cannot impose their own rules on what companies do and don’t publish.
“To the extent that social media platforms create expressive products, they receive the First Amendment’s protection,” Justice Elena Kagan writes for four other justices, with others writing concurring opinions.
Perceived bias by a platform does not give states a cheat code to defeat that protection, she writes, calling it “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.”
The Florida and Texas statutes, passed after social platforms banned President Trump following the Jan. 6, 2021, insurrection at the Capitol and months of Trump lies about the 2020 election, aimed to do just that by prohibiting content moderation on political grounds.
Florida’s S.B. 7072 (PDF) requires large social platforms to carry all posts by and about officially filed political candidates, with no downranking, labeling, or editing allowed, and allows only content moderation for obscenity of posts from “journalistic enterprises.”
It also imposes a waiting period on content-moderation changes, limiting platforms to revisions every 30 days—a restriction that could make the already-difficult work of content moderation impossible even for the types permitted under the Florida law.
A panel of the United States Court of Appeals for the Eleventh Circuit held in May 2022 that this forced-carriage statute likely violated the First Amendment.
The Texas law, H.B. 20 (PDF), imposes an even broader ban on content moderation based on “viewpoint.” Under it, large platforms may not “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression,” with few exceptions for things like directly inciting criminal activity or directly threatening violence.
A panel of the US Court of Appeals for the Fifth Circuit held in May 2022 that this statute—which, as Justice Kagan observes, would require platforms to publish posts advocating Holocaust denial and anti-vaccine lies—did not represent a First Amendment foul, although the judges' single-sentence ruling did not explain why.
The Supreme Court did not overturn the Florida and Texas statutes, however, and instead held that the circuit courts didn’t address the scope of the challenges to these laws brought by NetChoice and the Computer & Communications Industry Association.
Those Washington trade groups had submitted a “facial challenge,” arguing that the state laws inherently violated the First Amendment’s protections of speech. The Supreme Court’s ruling instructs those appeals courts to redo their work to assess that sweeping challenge. But first it scolds the Fifth Circuit for “a serious misunderstanding” of the Constitution’s free-speech protections.
“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,” Justice Kagan writes. “And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds.”
'There Is Much Work to Do'
This is the second time in a week that the Supreme Court has told the Fifth Circuit that it got basic legal principles wrong. Last week, the Court tossed a Fifth Circuit ruling that executive-branch officials telling social platforms to apply their own content rules violated the First Amendment, holding that the plaintiffs never had standing to bring that suit in the first place.
The opinion’s citing of previous cases allowing newspaper opinion pages, parade organizers, and cable operators to make their own editorial choices—even if they are in practice so broad that parties on the losing end of them may feel unfairly singled out—tells both lower courts to revisit the state laws with those precedents in mind.
“In sum, there is much work to do below on both these cases, given the facial nature of NetChoice’s challenges,” Justice Kagan writes. “But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”
The cases were Ashley Moody, Attorney General of Florida, et al., Petitioners v. NetChoice, LLC, bba NetChoice, et al. and NetChoice, LLC, bba NetChoice, et al. Petitioners v. Ken Paxton, Attorney General of Texas. Justice Kagan wrote for Chief Justice John G. Roberts, Jr., and Justices Amy Coney Barrett, Brett M. Kavanaugh, and Sonia Sotomayor.
Justice Ketanji Brown Jackson wrote one concurring opinion mostly supporting their holding, Justices Clarence Thomas wrote a brief concurring opinion taking more exception to it, and Justice Samuel A. Alito, Jr. wrote a longer concurring opinion that also questioned part of the majority’s logic, joined by Thomas and Justice Neil M. Gorsuch.