Supreme Court ducks ruling on red states’ social media censorship laws

The Supreme Court declined to rule Monday on two state laws restricting social media companies’ ability to censor posts, sending them back to lower courts for more hearings on exactly how the laws would work in practice.

The court signaled skepticism over the Florida and Texas laws, suggesting they may trample on the tech giants’ First Amendment rights in how they carry out “content moderation.” But the justices said there’s too much uncertainty to render a final decision right now.

“In sum, there is much work to do below on both these cases,” Justice Elena Kagan wrote in the key opinion. “But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”

All nine of the court’s members agreed with the decision to send the cases back to lower courts, though three Republican-appointed justices said they disagreed with some of Justice Kagan’s skepticism over the state laws at this point.

Texas and Florida enacted their laws in 2021, following controversy over the 2020 presidential election and amid censorship disputes over the COVID-19 pandemic. Twitter, Facebook and YouTube, at times with the government’s urging, were scouring their sites for content they deemed inappropriate, inaccurate or harmful.

Among the companies’ targets were posts that questioned coronavirus vaccinations or suggested the deadly virus came from a Chinese laboratory.

Twitter had also suppressed a New York Post article about Hunter Biden’s laptop. The social media company wrongly claimed the laptop and its contents were Russian disinformation.

The Texas law prohibited social media companies from removing and moderating content that some may find offensive or hateful. It also required disclosure of some business practices, such as algorithms used to promote content.

Florida’s law called for fines of up to $250,000 per day for large social media companies that de-platform political candidates.

NetChoice, an advocacy group, challenged the laws saying they infringed on private companies’ free speech rights. The group said governments cannot police the decisions about promoting and suppressing content.

The 11th U.S. Circuit Court of Appeals ruled against Florida’s law. The 5th Circuit had largely backed Texas’ law, saying content moderation is “not speech” and falls outside First Amendment protections.

NetChoice brought what’s known as a facial challenge, which means a law is unconstitutional in every possible application.

The Supreme Court said it was premature to draw that conclusion.

Justice Kagan said the litigants and judges in the lower courts had focused on questions about how the First Amendment impacts newsfeeds or a homepage. But she said by the time the case got to the justices, it was clear there were broader implications to the state laws.

“The parties have not briefed the critical issues here, and the record is underdeveloped,” she said in sending the cases back. “That will enable the lower courts to consider the scope of the laws’ applications, and weigh the unconstitutional as against the constitutional ones.”

She acknowledged the massive stakes involved.

“Social media platforms, as well as other websites, have gone from unheard-of to inescapable,” Justice Kagan wrote. “They structure how we relate to family and friends, as well as to businesses, civic organizations, and governments. The novel services they offer make our lives better, and make them worse — create unparalleled opportunities and unprecedented dangers.”

She said legislatures and government agencies will generally be “better positioned” to answer those questions, but it must be within the framework of the First Amendment.

And that, she said, is where at least one of the lower courts erred.

“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. And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds,” Justice Kagan wrote.

Justice Samuel A. Alito Jr., while agreeing that the cases should be returned to lower courts, said Justice Kagan was wrong to be skeptical of the state laws at this point.

“The only binding holding in these decisions is that NetChoice has yet to prove that the Florida and Texas laws they challenged are facially unconstitutional,” he wrote in an opinion joined by Justices Clarence Thomas and Neil M. Gorsuch.

NetChoice saw the decision as a victory.

“Today’s ruling from the Supreme Court is a victory for First Amendment rights online,” said Chris Marchese, director of the litigation center for NetChoice. “As our cases head back to the lower courts for consideration, the Supreme Court agreed with all our First Amendment arguments. Free speech is a cornerstone of our republic.”