SCOTUS Punts Questions About Speech On Social Media

Just hours ago, as the last full day of the 2024 term drew to a close, the U.S. Supreme Court issued an opinion that decided two significant cases regarding the regulation of social media platforms pursuant to State laws: Texas House Bill 20 (in NetChoice, LLC v. Paxton) and Florida State Bill 7072 (in Moody v. NetChoice, LLC) ("State Laws"). Social media platforms have standards and guidelines to regulate content and make content moderation decisions. Platforms also utilize algorithms and human intervention to remove and flag content, as well as to ban, block, and flag accounts and content. Both State Laws curtailed "platforms' capacity to engage in content moderation" and required disclosure from platforms as to their content moderation. NetChoice (a trade association for social media platforms) challenged the State Laws as violating the First Amendment.

This Alert provides an overview of the collective 96 pages of the Court's NetChoice decision and our thoughts as to what to expect next.

TL;DR

Many hoped that the Court would provide guidance on how platforms' content moderation and similar activities square with the First Amendment, as well as on the balance between free speech and government regulation on social media. The majority provided some guidance, but it only did so in dicta. That dicta attracted sharp criticism from Justices Thomas, Alito, and Gorsuch, who weighed in on the compatibility of the State Laws with the First Amendment (again, in dicta). The majority and the minority provided a roadmap for the parties to continue litigating in the lower courts. However, neither provided definitive, practical guidance for the public or platforms. For now, it remains imperative that all important decisions regarding the conduct of social media platforms and social media activity are subject to proper scrutiny and legal advice according to all applicable laws.

SCOTUS's Decision

The Court punted on determining the constitutionality of the State Laws. It vacated the Fifth and Eleventh Circuit decisions and remanded the cases because the lower courts "failed to conduct a proper analysis of the facial First Amendment challenges." The Court held that there needed to be a more developed record and proper analysis of the State Laws' scope — noting that none of the lower courts nor the parties properly addressed "the full range of activities the laws cover" to "measure the constitutional against the unconstitutional applications." The Court emphasized it was a "court of review, not of first view" and that "NetChoice's decision to litigate these cases as facial challenges comes at a cost."

The Justices Update Their Status on Constitutionality of the State Laws

However, the majority then said that "it is necessary to say more" about how the First Amendment relates to the State Laws. The majority strongly suggested that the State Laws violated the First Amendment, considering social media platforms as "compilers" and "curators" of others' speech who are protected by the First Amendment.

In doing so, the majority surveyed some of the Court's key First Amendment cases to articulate "three general points":

1. The First Amendment protects an entity that compiles and curates others' speech into an expressive product of its own, when that entity is directed to accommodate messages that it wishes to exclude;
2. That First Amendment protection is not altered by the fact that a "compiler ... includes most items and excludes just a few;" and
3. The government cannot get its way just by asserting an interest in better balancing the marketplace of ideas.

The majority held that, "[l]ike the editors, cable operators, and parade organizers this Court has previously considered, the major social-media platforms curate their feeds by combining 'multifarious voices' to create a distinctive expressive offering." The majority then held that "the Texas law targets those expressive choices" and "profoundly alter[ed] the platforms' choices about the views they convey." The majority also questioned the interest on which Texas relied to sustain its law:

A State may not interfere with private actors' speech to advance its own vision of ideological balance ... A State cannot prohibit speech to rebalance the speech market.

The minority, Justices Thomas, Alito, and Gorsuch, blasted the majority's approach, stating:

The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional. Everything else in the opinion of the Court is nonbinding dicta. ... [I]ts description of the Florida and Texas laws, as well as the litigation that shaped the question before us, leaves much to be desired. Its summary of our legal precedents is incomplete. And its broader ambition of providing guidance on whether one part of the Texas law is unconstitutional as applied to two features of two of the many platforms that it reaches—namely, Facebook's News Feed and YouTube's homepage—is unnecessary and unjustified.

In their opinions, the minority provided a competing roadmap for the States to support the constitutionality of the State Laws. For example, Justice Thomas' concurrence held that "the common-carrier doctrine should continue to guide the lower courts' examination ... there is clear historical precedent for regulating ... communications networks in a similar manner as traditional common carriers." This is extremely important, as the application of the common carrier doctrine may allow the government to regulate social media platforms to a greater degree. The minority provided guidance for distinguishing cases on which the majority relied, drawing contrast between "real human beings" editing newspapers and "AI algorithms" used to moderate social media content. The minority also quoted former Twitter/X CEO Jack Dorsey's statement that "all companies" should explain moderation decisions and instructed lower courts to "consider whether compliance with EU law [requiring disclosure of moderation decisions] chilled the platforms' speech."

Takeaways and the Importance of Proper Analysis and Advice Relating to Social Media Conduct

Given that the most practically helpful holdings of the Court are dicta, NetChoice provides no definitive guidance for the public and platforms. Substantive guidance will now come from the lower courts, although even those decisions are likely to reach SCOTUS again.

Two interesting developments may come in cases dealing with related doctrines. For example, Justice Thomas' emphasis on the application of the common carrier doctrine may provide a thorn in the side of the platforms in the lower courts. This is linked with another issue, the application of Section 230 of the Communications Decency Act, telegraphed by Justice Gorsuch during oral argument: "So it's speech for the purposes of the First Amendment, your speech, your editorial control, but when we get to Section 230, your submission is that that isn't your speech." We are likely to hear more about the same in future cases.

For now, complex questions that members of the public and business have confronted with respect to social media remain. The lack of clear Supreme Court guidance is unfortunate, but the remarks of the Justices give some guidance as to what the future may hold and may be used to influence social media conduct.

It remains imperative that all important decisions regarding the conduct of social media platforms and social media activity are subject to proper scrutiny and legal advice according to all applicable laws.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.