The First Amendment “does not go on leave when social media are involved.” So declared the U.S. Supreme Court earlier this month, in a decision with far-reaching implications for any government official looking to regulate the content moderation practices of social media platforms.
Here’s the story.
In September 2022, the U.S. Court of Appeals for the 5th Circuit delivered a major win to the state of Texas, which had passed a law forbidding large social media platforms like Facebook and YouTube from removing users or posts based on the opinions that they expressed. “There is a dangerous movement by social media companies to silence conservative viewpoints and ideas,” asserted Texas Gov. Greg Abbott when he signed the legislation into law. “That is wrong, and we will not allow it in Texas.”
The 5th Circuit agreed. “Today we reject the idea that corporations have a freewheeling right to censor what people say,” the court held. According to the 5th Circuit, state lawmakers have the authority to regulate and even dictate the content moderation policies of Facebook and YouTube.
But neither Texas nor the 5th Circuit fared so well before the U.S. Supreme Court. In fact, in its July 1 ruling, the Supreme Court basically bench-slapped the 5th Circuit for turning a blind eye to “the First Amendment problems” rife in the Texas law. “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,” the Supreme Court said. “And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds.”
The Supreme Court bench-slapped the 5th Circuit for ignoring the First Amendment problems.
At the same time, however, the Supreme Court stopped short of actually invalidating the Texas law it had just disparaged. Instead, the justices sent the case back down to the lower courts for further proceedings.
But why would the Supreme Court identify the law’s constitutional defects yet still leave the law in place? Why not overrule the law and be done with it?
The answer lies in the sweeping reach of the law itself. The case, Moody v. NetChoice, was actually two cases wrapped into one. The first dealt with the Texas law, which, among other things, made it illegal for large social media platforms to “block, ban, remove, deplatform, demonetize, [or] de-boost” any user or post “based on…the viewpoint of the user” or “the viewpoint represented in the user’s expression.” The second dealt with a similar statute enacted by Florida, which likewise prohibited the platforms from taking any actions that “unfairly censor, shadow ban, deplatform, or apply post-prioritization algorithms to Florida candidates, Florida users, or Florida residents.”
According to the Supreme Court, both state laws were so broadly written that they might also apply to other things that were not part of the present legal dispute, such as instant messaging. Yet “the focus” in the lower courts “was on how the laws applied to Facebook’s News Feed and YouTube’s homepage.” So, because the lower courts “did not address the full range of activities the laws cover,” the Supreme Court decided that it lacked the complete information needed to rule on whether the laws should be struck down in their entirety, as NetChoice, the trade group representing the platforms, had asked the justices to do.
That is why the Supreme Court kicked the case back down to the lower courts.
“The parties have not briefed the critical issues here, and the record is underdeveloped,” the Court ruled. “So we vacate the decisions below and remand these cases. That will enable the lower courts to consider the scope of the laws’ applications, and weigh the unconstitutional as against the constitutional ones.”
Both state laws will now face further judicial proceedings.
Notably, the Supreme Court could have stopped right there. Because the case was undercooked, it was put back in the oven. No need to try and digest the substance of it yet.
But the Supreme Court did not stop right there. Instead, five justices, led by Elena Kagan, took a big bite and recoiled in disgust. Those justices left little doubt that if the case had been properly centered on Facebook’s News Feed and YouTube’s homepage, the state restrictions would have been ruled unconstitutional as applied.
“The reason Texas is regulating the content-moderation policies that the major platforms use for their feeds,” wrote Kagan, “is to change the speech that will be displayed there.” Her opinion was joined in full by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett. “Texas does not like the way those platforms are selecting and moderating content, and wants them to create a different expressive product, communicating different values and priorities. But under the First Amendment, that is a preference Texas may not impose.”
In other words, Texas and Florida both violated the First Amendment by infringing on the protected editorial decisions of private media companies. Just as newspapers have the right to accept or reject op-eds for publication as they see fit, Facebook and YouTube have a comparable right to block users or delete posts that those platforms do not want to be associated with. “When the platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices,” Kagan wrote. “And because that is true, they receive First Amendment protection.”
Think of Moody v. NetChoice as a warning shot. If a properly structured case ever does arrive at the Supreme Court, laws like these will be destroyed.
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