Social media regulation? Not today, says Supreme Court

States that have attempted to regulate social media must keep waiting to find out if their laws pass constitutional muster. The Supreme Court on Monday sent industry groups’ challenges to Florida and Texas laws back to trial courts for further consideration.

The Texas law before the court bars platforms such as Facebook and YouTube from censoring users because of their political viewpoints and requires companies to disclose their content management and moderation policies, though it includes exceptions. Florida’s law operates similarly, barring censorship or deplatforming of political candidates and “journalistic enterprises.” Like the Texas law, it requires that companies notify users when they take action to remove or flag their posts or deplatform them.

The 5th U.S. Circuit Court of Appeals upheld the Texas law in 2022 while the 11th U.S. Circuit Court of Appeals blocked the Florida law. In February, Supreme Court justices heard oral arguments to resolve the split, though the justices also seemed conflicted at the time about what to do with the cases.

On Monday they agreed that they could not yet rule definitively because neither of the appellate courts had considered the “facial nature” of the challenges. NetChoice and the Computer and Communications Industry Association sued on the grounds that the state laws on social media censorship were unconstitutional on their face, not merely when applied to certain circumstances. In a majority opinion joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh, Amy Coney Barrett, and in part by Justice Ketanji Brown Jackson, Justice Elena Kagan explained the high bar faced by a facial challenge.

“The question is whether ‘a substantial number of [the law’s] applications are unconstitutional,’” wrote Kagan. She added that the court could only legally strike down a law “if the law’s unconstitutional applications outweigh its constitutional ones.” Since neither trial court had considered the full breadth of either state law and the parties had not addressed those issues in their filings, she concluded that the only remedy was to set aside both rulings and return the cases to the trial courts.

That should have been the end of the ruling, said Justice Samuel Alito in a concurring opinion that Justices Clarence Thomas and Neil Gorsuch joined. “The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional,” he wrote. But Kagan also included some additional nonbinding guidance as to how the lower courts should rule on the facial challenge.

“The Fifth Circuit was wrong in concluding that Texas’ restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression,” wrote Kagan. “And the court was wrong to treat as valid Texas’ interest in changing the content of the platforms’ feeds.”

Kagan said the same First Amendment principles apply to internet platforms as apply to newspapers, private utilities, broadcasters, and parade organizers.

Of one thing Kagan was sure: Texas’ desire for ideological balance on social media does not allow the state to regulate content. “Texas does not like the way those platforms are selecting and moderating content, and wants them to create a different expressive product, communicating different values and priorities,” she wrote. “But under the First Amendment, that is a preference Texas may not impose.”

Thomas and Alito also offered nonbinding suggestions to the lower courts. Returning to a theme he raised at oral arguments, Thomas suggested that the lower courts consider whether, because of their size and power, the internet companies should be treated as common carriers. If so, like public utilities or transportation companies, they can be subject to greater regulation.

In a statement, NetChoice counted the ruling a vindication. “We are gratified to see the Supreme Court acknowledge the Constitution’s unparalleled protections for free speech, including the world’s most important communications tool, the internet,” said Chris Marchese, director of the NetChoice Litigation Center.

In contrast, in a post on X, the platform formerly known as Twitter, Texas Attorney General Ken Paxton called out “Big Tech censorship” that affects election integrity and public discourse. “I will keep fighting for our law that protects Texans’ voices,” Paxton vowed. “No American should be silenced by Big Tech oligarchs.”

Monday’s ruling, one of the last three of the court’s term, came on the heels of its ruling last week that declined to address the merits of a challenge to the Biden administration’s attempts to influence content allowed by social media companies.

Together, the rulings suggest a court jealously guarding the province of the First Amendment and reluctant to deal with problems better addressed by Congress.

While supportive of the ruling, David Greene, civil liberties director of Electronic Frontier Foundation, pointed to other avenues to address concerns about social media companies. Greene said in a statement that the company promotes “strong consumer data privacy laws to regulate social media companies’ invasive practices, as well as more robust competition laws that could end the major platforms’ dominance.” He also advocated that the companies adopt the 2018 Santa Clara Principles, a framework for transparency and accountability in content moderation.

Kagan acknowledged this won’t be the last challenge concerning tech censorship. “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,” she wrote. “And those government actors will generally be better positioned than courts to respond to the emerging challenges social-media entities pose.”