Supreme Court casts a skeptical eye on conservative state-level efforts to regulate social media

The Supreme Court moved into the online era this term by deciding two cases that will have implications for free speech on social media.

In one, the court ruled unanimously to send the combined NetChoice v. Paxton and Moody v. NetChoice back down to the respective federal circuit courts that came to opposite conclusions on the Texas and Florida state laws. The Supreme Court ordered a more thorough examination of the scope of laws and their First Amendment implications before weighing in on their constitutionality. But it did so with a strong indication that at least some of the applications of the laws are indeed unconstitutional.

The Texas rule aimed to treat larger social media platforms, those with more than 50 million active monthly users, like common carriers, presumably curtailing the platforms’ ability to moderate third-party posts. Supporters of the measure claimed some users were being unfairly discriminated against or “censored” on major platforms because of their conservative viewpoints. The law authorized Texas residents who believed they had their posts removed based on political ideology to sue the platform and empowered the state attorney general to take legal action on the user’s behalf. The law was challenged in court, upheld by the U.S. Court of Appeals for the 5th Circuit, but eventually barred from going into effect while the Supreme Court heard the challenge.

The Florida law was similar in that it restricted social media outlets’ ability to curate content as they pleased. But it differed in its thresholds (social media platforms that made at least $100 million a year or had at least 100 million users a month) and its aims. Florida sought to prevent larger online services from deplatforming a candidate for political office and introduced fines of $250,000 a day for statewide offices and $25,000 a day for all other candidates when those bans occurred. The law also allowed social media users to opt out of algorithms aimed at catering to a user’s interests and instead see content based only on the chronological order of the post. The same two industry groups that challenged the Texas law secured injunctions of the law from lower courts.

Both states’ laws have notifications and explanation requirements for the termination of posts and accounts. The measures would have applied to Facebook, YouTube, WhatsApp, Instagram, X, and many others.

When the cases reached the Supreme Court, they were essentially combined, owing to the focus on the same core free speech issues. Namely, do the laws impinge unconstitutionally on the First Amendment rights of social media platforms?

While the court punted on declaring the laws outright unconstitutional, the majority opinion heavily reprimanded the 5th Circuit for upholding the Texas law, writing that “the editorial judgments influencing the content of those feeds are, contrary to the 5th Circuit’s view, protected expressive activity.” In doing so, the Supreme Court strongly suggested that the state laws, as applied to curated feeds, do not pass First Amendment muster. In her opinion for the majority, Justice Elena Kagan cited precedent by which the court has acted to protect that kind of expressive decision-making in the past in the context of a newspaper and a parade, adding that the First Amendment “does not go on leave when social media are involved.”

The court offered less guidance on the question of mandating disclosures and explanations from the platforms when users’ posts are removed, demoted, or user accounts are removed.

The injunction against the laws going into effect will remain in place while they are reconsidered at the lower courts. It remains to be seen if state legislators will pass new laws in attempts to accomplish their ends but not run afoul of the First Amendment protections the Supreme Court warned of.

The other case, Murthy v. Missouri, was also a punt of First Amendment questions. Two states and five individual social media users sued federal agencies and executive branch employees, alleging that the government’s pressure on social media platforms to demote their posts was unconstitutional “jawboning.” These claims involved content about COVID-19 vaccines, masking policies, lab leak theories, and the Hunter Biden laptop story.

The court found that the plaintiffs did not have sufficient standing and avoided weighing in on the question of whether state action was involved when federal government agencies asked social media platforms to remove what they believed to be “misinformation.” Writing for the majority, Justice Amy Coney Barrett ruled that the plaintiffs did not show that the government action itself caused harm to users and that there was insufficient evidence that this harm would happen again in the future.

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This leaves the question of when government requests to social media platforms become an unconstitutional end-run around First Amendment protections unanswered. Also unknown is if Congress will take action to write rules clarifying when this line is crossed.

As the Supreme Court hints that social media companies have First Amendment rights of their own and demurs on the question of when those rights are violated by government pressure, it has already agreed to hear a case about Texas age verification requirements and health warnings for pornography sites in its next term. At the highest court, internet questions appear to be here to stay.