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Supreme Court Says Social Media Platforms Have First Amendment Rights Too

SCOTUS returned two cases about Big Tech and how they “censor” their platforms to lower courts.

Social media applications
Social media applications are displayed on an iPhone. Jenny Kane/AP

In a — sort of — unanimous decision on Monday, the Supreme Court sent a case back to two lower courts for them to evaluate whether laws regulating social media content moderation in Florida and Texas would violate those platforms’ First Amendment rights to free speech.

In Moody v. NetChoice, the Supreme Court vacated and remanded the case involving a Florida “censorship” law because the lower courts hadn’t thoroughly analyzed the First Amendment questions surrounding the legislation. The ruling also functions as a decision — similarly vacated and remanded — for NetChoice v. Paxton, which dealt with Texas’ state law regulating social media content moderation.

The 9-0 decision had five justices authoring an opinion, with four justices concurring in full with Justice Elena Kagan’s opinion for the court.

“Neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms,” Kagan wrote. “Because this is ‘a court of review, not of first view,’ ... this Court cannot undertake the needed inquiries. And because neither the Eleventh nor the Fifth Circuit performed the facial analysis in the way described above, their decisions must be vacated and the cases remanded.”

The Florida law in question seeks to limit social media platforms’ ability to “censor.” The law prohibits deplatforming political candidates and mandates detailed disclosures of content moderation policy. It ultimately treats large social media platforms — those with yearly revenue higher than $100 million or at least 100 million monthly users — as common carriers.

The Texas law is significantly broader. It ultimately prohibits most large websites from “censoring” speech based on the viewpoint of the speaker, a fairly far-reaching description.

The court also took a poorly disguised direct hit at the 5th Circuit, a court it appears exasperated with after a series of overturnings and remands.

“It is necessary to say more about how the First Amendment relates to the laws content-moderation provisions … That need is especially stark for the Fifth Circuit,” Kagan wrote.

Kagan’s opinion hints that the future for the Texas law is grim: “Texas’s asserted interest relates to the suppression of free expression, and it is not valid, let alone substantial. Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of viewpoints that major platforms present. But a State may not interfere with private actors’ speech to advance its own vision of ideological balance,” she wrote.

Nuha Dolby is a NOTUS reporter and an Allbritton Journalism Institute fellow.