The Supreme Court, in one of its final days of delivering opinions this term, issued a unanimous decision Monday tossing two cases back to lower courts, stymieing a Republican-led effort to litigate their feelings about social media platforms' handling of the 2020 election, and of Donald Trump after January 6th.
It's the second blow in a week to Republican lawmakers and attorneys general who continue to try to litigate how Silicon Valley companies "censor" conservative speech and address the unprecedented nature of former President Donald Trump's social media use. And the unanimous decision Monday indicates a bit more about how the justices may address future cases when it comes to online expression, content moderation, and the First Amendment.
The two cases in question are First Amendment challenges brought by social media platforms against two state laws enacted in 2021, in the states of Florida and Texas. Both laws sought to limit the ways in which social media companies, including Facebook, YouTube, and Twitter, moderate and remove content posted by users — reactions, in the wake of the 2020 election, to how the platforms labeled misinformation and other political content especially, and to the banning of Trump on the basis that he encited violence on January 6th.
Writing for the majority, Justice Elena Kagan writes that "there is much work to do below on both these cases," explaining that addressing the balance of First Amendment interests of social media companies with those of users was adequately addressed in either case. Kagan notes that the law is very new when it comes to social media, and that "Not even thirty years ago, this Court felt the need to explain to the opinion-reading public that the “Internet is an international network of interconnected computers." And now, Kagan writes, "These years have brought a dizzying transformation in how people communicate, and with it a raft of public policy issues."
While not ruling on the merits of the cases, as the New York Times notes, Kagan hints in her introduction at where a majority of justices may stand should such a case return to their docket.
"The questions of whether, when, and how to regulate online entities, and in particular the social-media giants, are understandably on the front-burner of many legislatures and agencies," Kagan writes. "But courts still have a necessary role in protecting those entities’ rights of speech, as courts have historically protected traditional media’s rights."
Kagan goes on to explain the parallels with the role of traditional media, like a newspaper editor's choices to curate stories for different reasons.
"In constructing certain feeds, those platforms make choices about what third-party speech to display and how to display it," Kagan writes. "They include and exclude, organize and prioritize — and in making millions of those decisions each day, produce their own distinctive compilations of expression. And while much about social media is new, the essence of that project is something this Court has seen before."
And Justice Kagan goes on to cite examples of cases where the court has upheld the rights of parade organizers, newspapers, and others to exclude a minority of participants or content that they deem offensive or incompatible with their respective projects.
Addressing the Texas law, Kagan suggests that the Fifth Circuit was wrong to ignore the First Amendment implications for the companies themselves, versus users. "It prevents a platform from compiling the third-party speech it wants in the way it wants, and thus from offering the expressive product that most reflects its own views and priorities." And, Kagan adds, "this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression — to "un-bias" what it thinks biased, rather than to leave such judgments to speakers and their audiences."
Today's decision marks another in a series of solid wins at the nation's high court for social media companies, who for years now have been fending off attacks by Republicans who see their content moderation practices as violations of the First Amendment. Here, without declaring as such in a merits-based decision, Kagan suggests that the court will likely fall on the side of the platforms just as they would a newspaper or magazine, recognizing that they have First Amendment protections of their own as forms of "the press."
Last week, the court similarly ruled, not on merits but on standing, to toss back two similar cases brought by Louisiana and Missouri about the removal of Facebook posts deemed to be misinformation. That ruling was 6-3, with Justice Amy Coney Barrett writing for the majority and joined by Kagan, Chief Justice John Roberts, and Justices Sonia Sotomayor, Brett Kavanaugh, and Ketanji Brown Jackson. The ruling said that a group of social media users in each case lacked standing to sue Facebook. As Justice Barrett writes, "The plaintiffs rely on allegations of past government censorship as evidence that future censorship is likely. But they fail, by and large, to link their past social-media restrictions to the defendants' communications with the platforms. Thus, the events of the past do little to help any of the plaintiffs establish standing to seek an injunction to prevent future harms."
And last term, in May 2023, the court ruled in favor of Google and Twitter in a challenge to Section 230 — the provision of the 1996 Communications Decency Act that has been frequently cited to protect social platforms from liability for the content posted by their users. That ruling addressed a pair of cases related to radicalization on the internet, and specifically to terrorists in the 2015 Paris nightclub bombing who were allegedly radicalized by watching YouTube videos by ISIS members.
In all three rulings, the court has upheld the Bay Area-based companies' modes of doing business, and their rights to create algorithms and curate user content as they wish.
Regarding today's ruling, the New York Times writes, "A ruling that tech platforms have no editorial discretion to decide which posts to allow would have exposed users to a greater variety of viewpoints but almost certainly would also have amplified the ugliest aspects of the digital age, including hate speech and disinformation."
Photo: Souvik Bannerjee
