Supreme Court rules in major internet speech cases

On Monday, the Supreme Court issued its decision in two consequential cases about the future of speech on the internet.

The Supreme Court vacated the appeals court decisions in Moody v. NetChoice and NetChoice v. Paxton, ruling that neither court adequately analyze whether the social media content moderation laws in Florida and Texas would be unconstitutional no matter what they applied to. The court sent the cases back down to the lower courts to reconsider.

The ruling includes some important guidance on how the First Amendment applies to internet companies. As Justice Elena Kagan wrote in the opinion for the Court’s majority, the First Amendment, “does not go on leave when social media are involved.”

None of the justices dissented, but there were several concurring opinions. Justice Kagan wrote the majority opinion, joined by Chief Justice John Roberts, and Justices Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett. Justice Ketanji Brown Jackson joined part of the majority opinion. Clarence Thomas and Samuel Alito wrote concurring opinions, and Thomas and Neil Gorsuch joined Alito’s.

In the majority opinion, Kagan wrote that they chose to vacate the conflicting appeals court decisions “for reasons separate from the First Amendment merits.” Instead, the justices felt that the appeals courts only focused on the ways the laws could apply to the kinds of products the parties in the cases were most worried about — as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms—as if, say, each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed,” Kagan wrote in the majority opinion. But, Kagan wrote, they should have evaluated how it could apply to other sorts of apps and websites, too.

“[T]he question in such a case is whether a law’s unconstitutional applications are substantial compared to its constitutional ones,” Kagan wrote. “To make that judgment, a court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry.”

The cases were about a pair of similar laws in Florida and Texas that aimed to limit how large social media companies could moderate content on their sites. The legislation took shape after conservative politicians in both states criticized major tech companies for allegedly exerting bias against conservative viewpoints. Tech industry groups NetChoice and the Computer & Communications Industry Association (CCIA) sued to block both laws. Appeals courts in each state came to different conclusions about whether the statutes could be upheld, setting up the Supreme Court to make the final call.

The justices heard oral arguments in the two cases — Moody v. NetChoice and NetChoice v. Paxton — in February. The primary issue at stake was whether social media companies could be forced to carry speech they don’t want to or whether that could violate the companies’ First Amendment rights. At the time, several of the justices seemed skeptical about the so-called must-carry provisions. But they also seemed open to figuring out if there are certain contexts in which platforms’ moderation decisions could be regulated without infringing on their own free expression.

During oral arguments, the justices seemed to feel out how expansively they’d need to rule. Throughout the arguments, they brought up how NetChoice brought a “facial” challenge against the laws, trying to argue there’s no possible constitutional application, rather than an “as applied” challenge, which would mean they’re only unconstitutional as applied in certain ways. The justices asked how the laws would impact tech platforms that may not have been top of mind when crafting them, such as Uber, Etsy, or Venmo.