Supreme Court dismisses state challenges to red state restrictions on social media platforms

The Supreme Court  on Monday dismissed challenges to Florida and Texas laws that restrict how large social media companies moderate user content. 

Each law would require Big Tech companies like X (formerly Twitter) and Facebook to host third-party communications but prevent those businesses from blocking or removing users’ posts based on political viewpoints.

In a unanimous ruling, the court said lower courts did not properly analyze the First Amendment issues at play in the case. As a result, each case will go back to its respective Circuit Court of Appeals.

“Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge. The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms—as if, say, each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed,” the court wrote.

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“But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment,” the court added.

There were no dissenting opinions; five justices filed separate concurring or concurring in judgment opinions as well. They included Justices Amy Coney Barrett, Ketanji Brown Jackson, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas.

In almost four hours of oral arguments in February, the justices weighed whether to offer a sweeping ruling on the First Amendment implications of the state laws, or a more limited approach that might have the lower courts take another look at how those content moderation policies would be applied.

The Florida law blocked a social media platform from engaging in censoring, prioritizing, or so-called “shadow banning” that is “based on the content.” Texas’ law was broader.

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Florida’s social media law blocked a social media platform from engaging in censoring, prioritizing, or so-called “shadow banning” “based on the content.”  (Matt Cardy/Getty Images)

It would have also prevented “willfully deplatforming a candidate” for public office for material posted by or about that candidate.

Both Florida and Texas would also require those companies to notify a user when their content has been modified or edited, along with an explanation for that action.

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Members of the Supreme Court, from left, Justices Amy Coney Barrett, Neil M. Gorsuch, Sonia Sotomayor, and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ketanji Brown Jackson, Samuel A. Alito, Jr., Elena Kagan, and Brett M. Kavanaugh on Sept. 30, 2022, in Washington, D.C. (Collection of the Supreme Court of the United States via Getty Images)

Trade groups representing big tech companies argue that the laws violate their free speech rights to decide what content meets their policies — saying their forums should not be an open-ended portal for offensive or dangerous speech — including school bullying, harassment, terrorist ideology, racial hatred, medical misinformation and voter fraud.

The laws were supported by Republicans in Congress and over a dozen GOP-led states, who filed amicus briefs in the case. 

Sen. Josh Hawley, R-Mo., said the platforms wanted to keep liability protections granted by Congress for content on their sites, while simultaneously asking for unfettered ability to censor content, citing their First Amendment liberties.

“Despite decades arguing for this position, today the tech platforms take precisely the opposite line. They claim that their content hosting and curation decisions are in fact expressive — expressive enough that they enjoy First Amendment protection,” the lawmaker argued.

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