The US supreme court on Monday threw out judicial decisions involving challenges to Republican-backed laws in Florida and Texas that restricted the power of social media companies to remove or down-rank objectionable content.
The justices directed lower appeals courts to reconsider a pair of decisions regarding these 2021 laws authorizing the states to regulate the content-moderation practices of large social media platforms. Tech industry trade groups had challenged the two laws under the US constitution’s first amendment limits on the government’s ability to restrict speech. The ruling came on the final day of the supreme court’s term that began in October.
“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 in the Florida case Moody v NetChoice. The cases are remanded back to the lower courts for retrial.
The American Civil Liberties Union called the decision “a win for free speech in the digital age” in a press release sent after the ruling. The legal group praised the court for recognizing that the government should not “impose its own vision of what online speech should look like”.
NetChoice – a group representing the world’s largest social media firms including Pinterest, TikTok, X and Meta – in the parallel case, NetChoice v Paxton, had challenged a Texas law broadly prohibiting social media platforms from “censoring on the basis of user viewpoint, user expression, or the ability of a user to receive the expression of others”.
NetChoice argued that this and similar laws unconstitutionally restricted companies’ ability to decide what content is published on their social networks.
Lower courts split on the issue, blocking key provisions of Florida’s law while upholding Texas’s measure. Neither law had gone into effect due to the litigation.
Florida sought to revive its law after the Atlanta-based 11th US circuit court of appeals ruled largely against it. The industry groups appealed a decision by the New Orleans-based fifth US circuit court of appeals upholding the Texas law, which the supreme court blocked at an earlier stage of the case.
The Texas law would forbid social media companies with at least 50m monthly active users from acting to “censor” users based on “viewpoint”, and allows either users or the Texas attorney general to sue to enforce it.
Florida’s law would constrain the ability of large platforms to exclude certain content by prohibiting the censorship or banning of a political candidate or “journalistic enterprise”.
At issue was whether the first amendment protects the editorial discretion of the social media platforms and prohibits governments from forcing companies to publish content against their will. The companies have said that without such discretion – including the ability to block or remove content or users, prioritize certain posts over others or include additional context – their websites would be overrun with spam, bullying, extremism and hate speech.
Both cases are the culmination of longstanding Republican complaints that tech giants actively censor political speech that is conservative in nature. Despite being repeatedly debunked by experts, such claims have been fueled by high-profile incidents like the removal of former president Donald Trump from Meta, X (then Twitter) and YouTube in 2021 after the 6 January 2021 riot at the US Capitol to obstruct the certification of Joe Biden’s victory over Trump in the 2020 presidential election.
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Trump was later allowed to return to all three of these platforms. The former president filed a brief in support of the law at the center of NetChoice v Paxton, urging the court to uphold it.
Free speech and civil rights advocates have spoken out against the laws, saying that they will significantly hinder social media firms’ ability to moderate content during an election year, when such practices are critical for stopping the spread of false and misleading information.
Joe Biden’s administration opposed the Florida and Texas laws, arguing that restricting social media platforms’ abilities to moderate content is actually the factor that violates the first amendment – by forcing platforms to present and promote content they view as objectionable or false.
Officials from Florida and Texas countered that the content-moderation actions by these companies fall outside the protection of the first amendment because such conduct is not itself speech. The Republican governors of both states argued in favor of the laws.
Another issue presented in the cases was whether the state laws unlawfully burden the free speech rights of social media companies by requiring them to provide users with individualized explanations for certain content-moderation decisions, including the removal of posts from their platforms.
This is not the first time the supreme court has addressed free speech rights in the digital age during its current term. In another case, the justices on 26 June declined to impose limits on the way Biden’s administration may communicate with social media platforms, rejecting a first amendment challenge to how US officials encouraged the removal of posts deemed misinformation, including about elections and Covid-19.