Supreme Court Sends Back Challenges to State Social Media Laws

Justices did not rule on the merits of the cases, but made clear they think the laws were unlikely to survive.

Supreme Court Sends Back Challenges to State Social Media Laws
Photo by Szabo Viktor, used with permission

WASHINGTON, July 1, 2024 – The Supreme Court on Monday handed back to lower courts two challenges to state laws that curbed social media companies’ ability to moderate content.

Tech trade associations NetChoice and the Computer & Communications Industry Association challenged the laws, one in Florida and one in Texas, alleging they violated the companies’ First Amendment rights.

The Eleventh Circuit Court of Appeals upheld a district court injunction against the law, finding the law unlikely to survive scrutiny, while the Fifth Circuit axed such an injunction, finding moderation practices were not covered by the First Amendment.

In a unanimous decision that the cases needed further appellate-level review, the Supreme Court told both courts to look at the cases again, saying they didn’t use the proper analysis.

“Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge,” wrote Justice Elena Kagan for the majority.

The court did expound on the merits of the First Amendment case though, partly because the need to do so was “especially stark for the Fifth Circuit, whose decision rested on a serious misunderstanding of First Amendment precedent and principle,” according to the court.

Justices seemed to suggest the laws were unlikely to survive.

“Texas is not likely to succeed in enforcing its law against the platforms’ application of their content-moderation policies to the feeds that were the focus of the proceedings below,” Kagan wrote. “The government may not, in supposed pursuit of better expressive balance, alter a private speaker’s own editorial choices about the mix of speech it wants to convey.”

Justice Amy Coney Barrett wrote in a concurrence that “the Eleventh Circuit’s understanding of the First Amendment’s protection of editorial discretion was generally correct; the Fifth Circuit’s was not.”

CCIA, one of the trade group challengers whose members include Facebook parent Meta, Elon Musk’s X, and Google, considered all that a win.

“We are encouraged that a majority of the Court has made clear that the government cannot tilt public debate in its favored direction,” CCIA president Matt Schruers said in a statement. “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.”

The cases will go back to the lower courts for review. Writing concurrences, Justices Samuel Alito and Clarence Thomas wanted that review to consider whether social media companies are common carriers, a legal designation that would make it harder for them to take down content.

“Most notable is the majority’s conspicuous failure to address the states’ contention that platforms like YouTube and Facebook – which constitute the 21st century equivalent of the old ‘public square’ – should be viewed as common carriers,” Alito wrote. “Whether or not the Court ultimately accepts that argument, it deserves serious treatment.”

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