Supreme Court Message in First Amendment Case: Technology Is Free to Moderate Social Media

The Supreme Court has sent back to lower courts two cases challenging social media moderation laws in Florida and Texas

By Lynn Greenky & The US Conversation

The following essay is reproduced with permission from The Conversation, an online publication covering the latest research.

The U.S. Supreme Court has sent back to lower courts the decision on whether states can prevent social media companies such as Facebook and X, formerly Twitter, from regulating and controlling what users can post on their platforms.

The laws in Florida and Texas seek to impose restrictions on the internal policies and algorithms of social media platforms in ways that influence which posts are promoted and shared widely and which are made less visible or even deleted.

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In its unanimous decision, issued on July 1, 2024, the Supreme Court remanded the two cases, Moody v. NetChoice and NetChoice v. Paxton, to the 11th and 5th U.S. Circuit Courts of Appeals, respectively. The Court chastised the lower courts for their failure to consider the full scope of the laws. It also cautioned the lower courts to consider the Constitution’s limits on government interference with free speech.

Contrasting views on social media sites

In their arguments before the court in February 2024, the two sides outlined competing visions of how social media fits into the often overwhelming flood of information that defines modern digital society.

The states said the platforms were mere communications conduits, or “speech hosts,” similar to traditional phone companies that were required to forward all calls and prohibited from discriminating against users. The states said the platforms should be required to forward all users’ messages without discriminating against each other based on what they say.

The states argued that the social networks’ content moderation rules were not examples of how the platforms themselves expressed themselves — or chose not to express themselves. Rather, they said, the rules affected the platforms’ behavior and led them to censor certain viewpoints by allowing them to determine who to allow to speak on what topics, which is outside First Amendment protections.

In contrast, the social media platforms, represented by NetChoice, a tech industry trade group, have argued that the platforms’ guidelines about what is acceptable on their sites are protected by the First Amendment’s guarantee that free speech should not be subject to government interference. The companies argue that their platforms are not public forums subject to government regulation, but rather private services that can exercise their own editorial judgment about what appears and does not appear on their sites.

They argued that their policies were aspects of their own speech and that they should be allowed to develop and implement guidelines about what constitutes acceptable speech on their platforms based on their own First Amendment rights.

A Supreme Court Reframe

The parties to the litigation – NetChoice, Texas and Florida – raised the issue of the impact of the laws on the platforms’ content moderation policies, particularly whether the platforms engaged in free speech. The 11th U.S. Circuit Court of Appeals upheld a lower court’s preliminary injunction against the Florida law, holding that the platforms’ content moderation policies constituted free speech and that the law was unconstitutional.

The U.S. Court of Appeals for the 5th Circuit came to the opposite conclusion, holding that the platforms were not engaged in communications activities, but rather that their algorithms were controlling the platforms’ behavior, which was not protected by the First Amendment. The 5th Circuit Court of Appeals determined that this behavior constituted censorship and overturned a lower court injunction against the Texas law.

The Supreme Court, however, reframed the inquiry. It noted that the lower courts had failed to consider the full range of activities covered by the laws. Thus, even if a First Amendment inquiry were in order, the lower courts’ decisions and the parties’ arguments were incomplete. The Court added that neither the parties nor the lower courts had engaged in a thorough analysis of whether and how the state laws affected other elements of the platforms’ products, such as Facebook’s direct messaging apps, or even whether the laws impacted email providers or online marketplaces.

The Supreme Court has ordered lower courts to engage in a much more rigorous analysis of laws and their implications and has provided some guidelines.

Principles of the First Amendment

The court ruled that content moderation policies reflect platforms’ constitutionally protected editorial choices, at least with respect to what the court described as “central applications” of the laws, such as Facebook’s News Feed and YouTube’s homepage.

The Supreme Court asked lower courts to consider two fundamental constitutional principles of the First Amendment. The first is that the amendment protects speakers from being compelled to communicate messages they would prefer not to. The editorial discretion of entities, including social media companies, that compile and curate the speech of others is an activity protected by the First Amendment.

The other principle is that the amendment prevents the government from controlling free speech, even for the purpose of balancing the marketplace of ideas. Neither the federal nor the state governments can manipulate that marketplace in order to present a more balanced range of views.

The Court also affirmed that these principles apply to digital media in the same way as they apply to traditional or legacy media.

In her 96-page opinion, Justice Elena Kagan wrote: “The First Amendment … does not apply where social media is involved.” For now, it appears that social media platforms will continue to police their content.

This article was originally published on The conversation. Read it original article.