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Supreme Court defers on state online content moderation laws

Justices discuss issues, but return challenges to lower courts

The Supreme Court building is seen at sunset in Washington.
The Supreme Court building is seen at sunset in Washington. (Bill Clark/CQ Roll Call file photo)

The Supreme Court sent back to lower courts Monday two challenges to Florida and Texas laws regulating social media platforms, deciding that the judges had to better define the stakes of free-speech issues in the disputes.

The opinion covering both cases kept alive the lawsuits over the state laws that seek to regulate Meta, Alphabet, X and other social media companies within state borders.

The ruling essentially prolongs challenges that could shake up how social media companies operate and define how lawmakers could regulate social media companies.

Texas and Florida enacted the laws as part of a conservative backlash to perceived “censorship” of conservative views by major social media platforms, and they included requirements that those sites have a detailed explanation and appeals process when users are blocked.

Justice Elena Kagan, writing for the court’s majority, said the lower courts had to do more work to lay out the legal issues in the cases for the Supreme Court to weigh in.

Kagan wrote that “no one paid much attention” to exactly what the laws covered and whether all the laws’ applications were constitutional or not.

“The online world is variegated and complex, encompassing an ever-growing number of apps, services, functionalities, and methods for communication and connection. 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,” Kagan wrote.

The decision sends the cases back to the U.S. courts of appeal for the 5th and 11th Circuit, and it means the Supreme Court will still likely revisit the issue in the future.

The two cases stem from laws in Texas and Florida that would restrict how the largest social media sites and other online platforms moderate their content and require them to explain to an account holder whenever they do remove or alter a post.

The states have argued that the laws would prevent online platforms from discriminating against anyone online based on their viewpoints and ensure transparency in the content moderation process for social media platforms that carry much of public discourse nationwide.

Industry groups, free-speech advocates and the Biden administration argued that the laws violate the First Amendment rights of social media companies, who should not be forced to host speech that they do not want to or be forced to explain their moderation decisions.

More discussion

Separate from the basic outcome, Kagan wrote for a six-justice majority criticizing the 5th Circuit decision that upheld the Texas law and stating that social media content moderation is free speech protected by the First Amendment to the Constitution.

“Deciding on the third-party speech that will be included in or excluded from a compilation — and then organizing and presenting the included items — is expressive activity of its own,” Kagan write.

Justice Amy Coney Barrett wrote separately, largely agreeing with the majority, but also raising concerns that technology, including algorithm-based content moderation and artificial intelligence may affect the constitutionality of internet regulation.

Barrett wrote that challenging the laws broadly “likely forces a court to bite off more than it can chew” and said that social media companies may be better served challenging the laws’ application piecemeal.

“While the governing constitutional principles are straightforward, applying them in one fell swoop to the entire social-media universe is not,” Barrett wrote.

Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, criticized the court’s majority’s “broad ambition” that shot down the 5th Circuit’s approach to the social media laws and raised concerns about the power of social media companies.

“Social-media platforms are diverse, and each may be unique in potentially significant ways,” Alito said, writing that the court should not have made such broad statements about the free-speech protections of content moderation.

Alito wrote that the justices should give “serious treatment” to the idea that social media platforms are common carriers that could be regulated like phone companies, and forced to carry all messages that meet general terms.

The laws have some differences, which came up during oral arguments, such as how the Florida law includes up to $100,000 in damages for violations but the Texas law does not.

In a separate case this term, the justices tossed an effort by Republican-led states and social media users to limit communications between the Biden administration and social media companies over alleged censorship of conservative views online.