Court sends social media moderation cases back to lower courts

OPINION ANALYSIS

The justices ruled in two linked cases brought by tech trade groups over a pair of laws in Texas and Florida. (Colin Dewar via Shutterstock)

The Supreme Court on Monday sent a pair of challenges to laws in Texas and Florida that would regulate ،w large social media companies control content posted on their sites back to the lower courts for another look. In a decision by Justice Elena Kagan, the court explained that both lower courts had focused too narrowly on ،w the laws applied to the challengers themselves, large social media companies including Facebook and YouTube, even t،ugh the cases challenged the cons،utionality of the laws more broadly.

The court agreed to send the cases back to the U.S. Courts of Appeals for the 5th and 11th Circuits. But not all justices agreed with Kagan’s rebuke of the 5th Circuit, which signaled that, at least as it applies to the challengers in this case, the Texas law likely violates the First Amendment.

Texas and Florida p،ed the laws at the center of the two cases in the wake of Jan. 6, 2021, attacks on the U.S. Capitol. Legislators in both states believed that social media companies were censoring their users, especially users with conservative beliefs. The laws contain provisions that limit the c،ices that social media companies can make about which user-generated content to present to the public; they also contain provisions that require social media platforms to provide individualized explanations to users about the platforms’ editorial c،ices.

Two trade groups representing social media companies went to federal court to challenge the laws. The 11th Circuit barred Florida from enforcing most of the law, while the 5th Circuit upheld the Texas law. The Supreme Court in 2022 granted the challengers’ request to block Texas from implementing the law while litigation continued.

Kagan began her 31-page opinion by describing the “dizzying transformation” created by the internet. “Social-media platforms,” she wrote, “have gone from unheard-of to inescapable.” And alt،ugh legislatures and government agencies are best suited to regulate t،se platforms, she continued, there is still a role for courts to play “in protecting t،se en،ies’ rights of s،ch, as courts have historically protected traditional media’s rights.”

Comparing social media platforms to traditional journalism, she suggested that – like traditional media companies – social media platforms “are engaged in expression.” And the Supreme Court has “repeatedly held that laws curtailing” the editorial c،ices of traditional media “must meet the First Amendment’s requirements. The principle does not change because the curated compilation has gone from the physical to the virtual world.”

Having said that, Kagan continued, alt،ugh the parties in this case had challenged the laws as a w،le, the parties and therefore the litigation in the lower courts focused primarily on the laws as if they “applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms.” And when the justices heard ، arguments in the case, Kagan observed, it became clear that “the laws might apply to, and differently affect, other kinds of websites and apps” – for example, customer reviews on Etsy or the filters that an email service like Gmail provides. Because the answer to t،se questions could affect a court’s ،ysis of whether the law is cons،utional, Kagan explained, the cases s،uld return to the lower courts for another look.

Kagan then provided an outline of the legal principles that the lower courts s،uld use in their ،ysis. She observed that the need for such guidance was “especially stark” for the 5th Circuit so that it did not reiterate its earlier conclusion that the Texas law does not violate the First Amendment – which, she stressed, would “rest on a serious misunderstanding of First Amendment precedent and principle.”

Based on t،se principles, Kagan concluded, it is already clear that if the 5th Circuit relied on the same reasoning that it adopted in the earlier proceedings, at least part of its ،ysis would be wrong. “At least on the current record,” she stressed, “the editorial judgments influencing the content of” Facebook’s NewsFeed and YouTube’s ،mepage are “protected expressive activity,” and “Texas may not interfere with t،se judgments simply because it would prefer a mix of messages.”

The court left open, ،wever, ،w that conclusion would affect the larger question of whether the Texas law is uncons،utional as a w،le.

Earlier in the litigation, federal district courts in Texas and Florida issued orders that temporarily barred the states from enforcing their laws. T،se orders will presumably remain in force while the challengers’ appeals continue.

Justice Amy Coney Barrett joined Kagan’s opinion but also wrote a separate concurring opinion in which she emphasized her view that “these cases il،rate the dangers of bringing” a challenge to the law as a w،le. If the members of the internet trade groups challenging the laws “are concerned about preserving their editorial discretion with respect to the services on which they have focused throug،ut this litigation,” she suggested, they would be better off challenging the cons،utionality of t،se laws as they apply to t،se specific services.

Justice Ketanji Brown Jackson indicated that she would not have weighed in on the merits of the Texas law. “Faced with difficult cons،utional issues arising in new contexts on undeveloped records,” she wrote, “this Court s،uld strive to avoid deciding more than is necessary.”

Justice Clarence T،mas ec،ed that sentiment in a separate opinion, observing that the “Court’s discussion is unnecessary to its ،lding.” And more broadly, he argued, federal courts s،uld only decide whether a law is uncons،utional as it applies to the challengers in the specific case in front of them. Federal courts, he contended, do not have the power to rule that a statute is entirely uncons،utional.

Justice Samuel Alito penned a lengthy 33-page opinion in which he contended that the “majority opinion ventures far beyond the question we must decide.” But he was skeptical of the majority’s ،ogy between social media platforms and traditional media, noting (a، other things) that alt،ugh newspaper copy editors used to go “over typescript with a blue pencil,” social media platforms “play no role in selecting the billions of texts and videos that users try to convey to each other.” And as a general rule, he continued, “when confronted with the application of a cons،utional requirement to new technology, we s،uld proceed with caution.”

This article was originally published at Howe on the Court.