The U.S. Supreme Court on Monday avoided final resolution of challenges to Florida and Texas laws that limit social media companies' ability to moderate content, leaving in limbo a Republican effort to push such laws to redress what it says is bias against conservatives.
Instead, the justices unanimously agreed to remand the cases back to the lower courts for analysis. In her majority opinion, Justice Elena Kagan wrote that neither lower court had adequately analyzed the First Amendment challenges to the Florida and Texas laws.
The law was prompted in part by the decision by some platforms to ban posts by President Donald J. Trump following the Jan. 6, 2021, attack on the Capitol.
Supporters of the law argued that it was meant to combat Silicon Valley censorship, adding that it promotes freedom of speech and gives people access to all viewpoints.
Opponents argued that the law would trample on the platforms' own First Amendment rights and turn them into cesspits for filth, hatred and lies.
The two laws differ in their details: Florida's law prohibits platforms from permanently banning candidates for public office in the state, while Texas' law prohibits platforms from removing content based on users' views.
“To generalize a little,” Judge Andrew S. Oldham of the Fifth Circuit Court of Appeals wrote in his decision upholding the Texas law. Florida law ” all Censorship Several The Texas bill: Several Censorship all We refer to speakers as “speakers” based on the opinions they express.
The two industry groups challenging the state law, NetChoice and the Computer and Communications Industry Association, argued that what Judge Oldham called censorship was an editorial decision protected by the First Amendment, which generally bars government regulation of speech based on content or point of view.
The groups argued that social media companies are entitled to the same constitutional protections as newspapers, which are free to publish without government interference.
A federal appeals court in 2022 reached conflicting conclusions about the constitutionality of the two laws.
A divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit overturned a lower court's order blocking the Texas law.
“We reject the platforms' attempt to derive their arbitrary power of censorship from their constitutional guarantees of free speech,” Justice Oldham wrote in the majority opinion. “The platforms are not newspapers. Their censorship is not speech.”
But a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit largely upheld a preliminary injunction blocking Florida's law.
“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in audience feeds or search results, or otherwise punish violations of their community standards, they are engaging in activity protected by the First Amendment.”
The Biden administration sided with social media companies in two cases, Moody v. NetChoice (No. 22-277) and NetChoice v. Paxton (No. 22-555).
A ruling that tech platforms have no editorial discretion in deciding which posts to allow would expose users to a greater variety of viewpoints, but it would almost certainly amplify the ugliest aspects of the digital age, including hate speech and misinformation.
The Supreme Court looked to two key cases to determine where to draw the constitutional line.
One of these, Pruneyard Shopping Center v. Robbins in 1980, involved a vast private shopping center in Campbell, California, containing 65 stores, 10 restaurants, and a movie theater on 21 acres. Although the shopping center was open to the public, as Justice William H. Rehnquist stated in his court opinion, it did not permit “any public expressive activity, including the circulation of petitions, not directly related to a commercial purpose.”
This policy was challenged by high school students opposed to UN resolutions against Zionism, who were prevented from distributing pamphlets and collecting signatures on petitions.
Justice Rehnquist, who became chief justice of the Supreme Court in 1986, wrote that a provision in the state constitution requiring shopping centers to allow people to engage in expressive activities on their premises did not violate the centers' First Amendment rights.
In the second case, Miami Herald v. Tornillo, in 1974 the Supreme Court invalidated a Florida law giving politicians a “right of reply” to newspaper articles that criticized them.
The suit was filed by Pat L. Tornillo, who was unhappy with a colorful Miami Herald editorial opposing his candidacy for the Florida House of Representatives, which the paper said had engaged in “intimidation politics.”
In a unanimous decision striking down the law, Chief Justice Warren E. Burger said the “vast accumulation of unreviewable power in the modern media empire” did not allow the government to usurp the role of editors in deciding what should be published.