from the mostly-good-news dept
Today, the Supreme Court made it pretty clear that websites have First Amendment rights to do content moderation as they see fit, but decided to send the cases challenging laws in Florida and Texas back to the lower courts to be litigated properly, effectively criticizing the litigation posture of the trade groups, NetChoice and CCIA, which brought the challenges in the first place. However, in doing so, the majority of the court also was pretty explicit that the Fifth Circuit got everything wrong all over again.
The Supreme Court waited until the very last day of the term to finally release its decisions in the cases regarding Florida and Texas’s social media moderation laws. I’m not going to go through a full history of either, as we’ve covered them in detail in the past, but both laws sought to place restrictions on how social media companies could moderate content in certain circumstances (generally political). The question at the heart of both cases was whether or not governments could compel private websites to host speech that those websites didn’t wish to host (i.e., violated their terms of service).
Both district courts rejected that premise as obviously unconstitutional. The appeals courts split, however. The 11th Circuit agreed that the law was mostly unconstitutional (though it allowed one problematic provision on transparency to continue). The 5th Circuit went rogue, upending a century’s worth of First Amendment law to say of course Texas has a right to compel websites to host speech that violates their rules.
The Supreme Court took its sweet time in dealing with this case, and now sends both cases back to the lower courts, saying that everyone did the analysis wrong: specifically by assuming the laws only applied to social media sites like Facebook and YouTube, when the reality is that they also probably apply to lots of other sites as well, and need to be analyzed on that basis.
The overall opinion on that point was 9-0, but there’s a bit of messiness involved in the rest, with some concurrences in parts and Alito, Thomas, and Gorsuch concurring only with the bottom line that the cases were decided on the wrong basis but insisting that the rest of the majority opinion, written by Justice Kagan, is unnecessary dicta that has no impact.
And while that may technically be true, that dicta makes some pretty strong and important points regarding the First Amendment rights of private platforms to moderate as they see fit, while the concurrence by Alito seems to disagree with Alito’s own dissent in the Murthy case from just last week.
Here’s a relatively quick analysis of the decision, and I’m sure we’ll have deeper, more nuanced analyses going forward.
Kagan starts off the majority opinion by citing back to the Reno v. ACLU case, which tossed out the Communications Decency Act (but not Section 230) as unconstitutional, and established some basic principles regarding how the First Amendment applies to the internet. And while the opinion notes that the internet has changed a lot, the First Amendment still applies:
But, in the end, the cases are sent back on somewhat technical grounds, because the courts should have reviewed the “facial nature” of the challenge. This was the issue that came up a lot during oral arguments. In short: was the challenge to the law itself (facial), or to how it was applied (as applied)? And, the majority basically says rather than spending so much time talking about what it would mean if the law were applied to social media sites specifically, the courts should have taken a step back to look at the entire law and whether or not it was constitutional at all.
In effect, this means that the underlying issues in this case are almost certainly going to come right back to the Supreme Court in another year or two. But still, Kagan makes it pretty clear that there are lots of elements in these laws that appear to attack the First Amendment rights of websites. In setting forth “the relevant constitutional principles” it becomes pretty clear that the Fifth Circuit’s total nuttiness concerns the court.
The majority’s concern then is really just on how the case was litigated, in which it was brought as a facial challenge to the law itself, but litigated as if it were an as-applied challenge. And that meant the record is incomplete for a full facial challenge.
But, again and again, the decision still makes it pretty clear that six out of the nine Justices appear to recognize just how crazy these laws are, and just how wrong the Fifth Circuit was in deciding that the law in Texas was just peachy.
The majority opinion, rightly, points to the important Miami Herald v. Tornillo case that said that newspapers have the right to decide not to publish someone’s political views if they chose not to. Much of the debate in all of the cases around these laws was whether or not websites were more like newspapers, in which the Miami Herald ruling would apply, or if they were more like telephone lines, in which common carrier rules could apply. The majority pointing to Miami Herald suggests they realize (correctly) how the First Amendment works here.
The fact that social media shows most content and only limits a very small amount doesn’t change the First Amendment analysis from the Miami Herald case (despite what some nonsense peddlers insisted):
And, yes, the decision notes, users may attribute views to the platforms themselves based on what they allow or disallow:
As for the favorite two cases of those pushing these laws, Pruneyard (about a shopping mall) and FAIR (about allowing military recruiters on campus), the Court notes that the organizations involved in both were not expressive by nature, as opposed to social media, which is expressive.
Even more interesting: the Court notes that the Texas law almost certainly couldn’t even survive lower levels of First Amendment scrutiny because the entire point of the law is to suppress free speech.
Indeed, the statements from Texas politicians pushing the law undermine the law pretty clearly:
And Texas can’t do that:
And thus, while the Court is sending the case back to the lower courts to review correctly under the necessary standards for a facial challenge, it makes it clear that the Fifth Circuit really fucked up its analysis, even if just to how social media functions:
Of the concurrences, Justice Barrett leans harder on the idea that NetChoice should have brought an “as applied” challenge, rather than a facial challenge. Justice Jackson also seems to feel that the litigation and the lower courts went too far in their analysis, and not just what was being challenged.
Justice Thomas wrote a concurrence with the underlying decision, but then whines for many pages about the rest of the majority’s analysis regarding the Fifth Circuit, saying that it is a waste of time, and also that it’s too early to be deciding these issues. He goes on for many pages slamming other Supreme Court decisions as well for being too broad. And, just to show how wrong he is, starts talking about “common carriers,” something even the final Fifth Circuit ruling wouldn’t fully endorse.
Justice Alito wrote a similar concurrence (which Thomas and Gorsuch sign onto) basically saying “we only agree that the cases should be sent back to the courts below to be evaluated as a facial challenge, and everything else in the majority decision is useless nonsense:
In the end, these cases are not over. They’ll go back below and we’ll get more decisions and there’s a decent enough chance that the cases will end up back before the Supreme Court again. But there is a lot in the majority opinion which makes it clear that the Fifth Circuit’s decision was absolutely as nutty and ridiculous as I described when it came out. And that part of the decision is supported by Kagan, Sotomayor, Roberts, Kavanaugh, and Barrett (in other words, five of the nine Justices). And it’s mostly supported by Jackson (she just didn’t sign on to the full analysis of the Texas law’s many Constitutional problems, suggesting it was too early to do so).
This is a good sign for the overall internet and the First Amendment rights of websites to have editorial discretion in how they moderate.