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Supreme Court orders second look at Texas and Florida social media laws

The Supreme Court on Monday ordered lower courts to take a second look at a pair of laws in Texas and Florida that would have prevented social media companies from removing certain political posts or accounts, saying the courts had not fully addressed the First Amendment issues involved.

The justices voided the judgments of separate appeals courts that had reached opposite conclusions about whether the laws were constitutional, ordering both to perform a much broader analysis of whether the statutes violate the right to free speech. The justices said they did not have enough information to make that determination sought by social media companies.

The high court dealt a blow to conservative critics of social media companies by signaling that key parts of the Texas law in particular are unlikely to withstand constitutional scrutiny.

Justice Elena Kagan wrote that social media sites such as Facebook and YouTube have First Amendment rights to curate and moderate the posts in users’ feeds.

The judgment on procedural grounds was unanimous, but the complex cases elicited five separate opinions. Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Brett M. Kavanaugh and Amy Coney Barrett joined Kagan in the majority opinion. Justice Ketanji Brown Jackson joined it in part.

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“These cases present a complex clash between two novel state laws and the alleged First Amendment rights of several of the largest social media platforms,” Jackson wrote in a concurring opinion.

“Not every potential action taken by a social media company will qualify as expression protected under the First Amendment,” she wrote. “But not every hypothesized regulation of such a company’s operation will necessarily be able to withstand the force of the First Amendment’s protections either. Beyond those most broadest of statements, it is difficult to say much more at this time.”

The cases tested whether state governments or tech companies have the power to set the rules for what content can appear on the popular social networks, which play an increasingly central role in political discourse and U.S. elections.

Republican state leaders adopted the laws in 2021 in response to growing concern among conservatives that social media giants were illegally censoring conservative views. Those accusations reached new levels when Facebook, Twitter and other companies suspended President Donald Trump’s accounts after the Jan. 6, 2021, attack on the U.S. Capitol.

Tech companies, represented by the trade group NetChoice, asked the court to block the Texas and Florida laws. The companies said the content-moderation measures are unconstitutional and conflict with the First Amendment by giving the government too much control over online speech published on privately owned platforms.

Because social networks play a critical role in public discussion, the courts’ ultimate decisions on the issues are likely to reverberate beyond Silicon Valley. Rulings are expected to influence policymakers in Congress and statehouses around the country as they attempt to write new laws governing social media and misinformation.

In the debate over Texas and Florida laws, much of the focus was on how the laws would apply to users’ public posts on major social media platforms such as Facebook and YouTube. In vacating the pair of lower court rulings Monday, the Supreme Court ruled that those courts had failed to properly consider the broad range of other ways the laws could affect online speech.

NetChoice had sought to have the state laws tossed out altogether as unconstitutional on their face. But as Kagan wrote in the majority opinion, that approach “comes at a cost,” because the court “has made facial challenges hard to win.”

In this case, the majority found the tech industry would have had to show that a “substantial number” of the laws’ applications would be unconstitutional.

“The laws appear to apply beyond Facebook’s News Feed and its ilk. But it’s not clear to what extent, if at all, they affect social-media giants’ other services, like direct messaging, or what they have to say about other platforms and functions,” Kagan wrote.

There were some indications in oral arguments that the court was worried about this issue. The justices repeatedly pressed both sides for more specificity as to which online platforms would be influenced, and which kinds of moderation activities should count as First Amendment-protected speech. For example, they wanted to know whether the laws might be constitutional when applied to platforms such as Uber, Venmo and Etsy, which aren’t primarily social media companies, even if they might be unconstitutional when applied to Facebook and YouTube.

NetChoice and the Computer & Communications Industry Association, the other tech group that challenged the state laws, celebrated the ruling as a victory for the First Amendment online. The groups said they were encouraged by the justices’ ruling that the First Amendment protects a company when it is “compiling and curating others’ speech into an expressive product of its own.”

Matt Schruers, CCIA’s president, said in a statement that the companies would continue to advocate for tech companies’ rights to decide what speech should be carried on their platforms as the cases return to the lower courts.

“We are encouraged that a majority of the Court has made clear that the government cannot tilt public debate in its favored direction,” he said in a statement.

The attorneys general for Texas and Florida posted on X that they would continue the fight to preserve the state laws.

“No American should be silenced by Big Tech oligarchs,” wrote Ken Paxton, the Texas attorney general.

Tech industry groups, national security officials and researchers say limiting the ability of companies to remove content could allow election disinformation, extremism and other harmful activities to fester online. Florida and Texas, meanwhile, argue that a handful of social media companies wield a powerful grip on modern political discourse, and that regulations are needed to ensure they don’t discriminate and silence certain voices.

The two cases reached the Supreme Court after the U.S. Court of Appeals for the 5th Circuit in 2022 upheld the Texas law. That decision created a split with the U.S. Court of Appeals for the 11th Circuit, which had already struck down key provisions of the Florida law.

All of the appeals court judges who have considered the Florida and Texas laws were nominated by Republican presidents. Judge Kevin Newsom, a Trump nominee on the 11th Circuit, wrote the unanimous opinion blocking Florida’s law. Another Trump nominee, Judge Andrew Oldham of the 5th Circuit, wrote the conflicting opinion upholding the Texas law.

In the past two terms, the Supreme Court has grappled with the regulation of social media, an increasingly influential force in American politics. In the absence of new federal laws governing the tech industry, lobbyists and advocates have been looking to the high court to shape the future of free speech online.

In Monday’s opinion, Kagan wrote that legislatures and agencies “will generally be better positioned” than the courts to respond to challenges presented by social media.

“But courts still have a necessary role in protecting those entities’ rights of speech, as courts have historically protected traditional media’s rights,” she wrote. “To the extent that social media platforms create expressive products, they receive the First Amendment’s protection.”

The Supreme Court gave detailed guidance to the lower courts about how the First Amendment should be applied to content moderation decisions on social media. Kagan wrote that a state cannot interfere with company’s decisions “to advance its own vision of ideological balance.”

“On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana,” she wrote.

The justices argued that the lower courts should treat social media companies more like newspapers, which can make editorial decisions about the content on their platforms. That ruling was a rebuke to the states, which have argued that the platforms should be regulated like a telephone company and be required to carry all content.

As the litigation continues, legal experts said the high court’s opinion boded well for the tech companies’ cases.

“It is likely that large portions, if not all, of the Florida and Texas social media censorship laws will ultimately fail,” Eric Goldman, a professor at the Santa Clara University School of Law, wrote in an email.

In the absence of federal social media laws, states have been crafting their own tech laws addressing a host of alleged harms, including to children and user privacy. Tech critics warned that an overly broad ruling on the Florida and Texas laws could jeopardize a host of efforts to rein in the power of the industry, which increasingly is using the First Amendment to challenge a variety of laws in court.

By issuing a relatively narrow ruling, the Supreme Court left open the possibility of regulating tech platforms. In the opinion, justices suggested that the government could enforce competition laws for online companies to maintain a “well-functioning sphere of expression.”

“The social media companies asked for a sweeping ruling that would have placed their business models beyond the reach of regulation,” said Jameel Jaffer, executive director of the Knight First Amendment Institute. “The states asked for a ruling that would have given them immense power to manipulate and control public discourse online. The Court was entirely right to reject these requests, both of which would have done real harm to our democracy.”

So far, the court has been relatively cautious in setting broad precedents in social media cases, making procedural decisions that leave some of the biggest questions about the future of free speech online unresolved.

Last week, the Supreme Court rejected a conservative effort to restrict White House officials and other federal employees from pressuring social media companies to remove posts from their platform. But legal experts said the high court punted on a critical opportunity to give clear guidance to the tech companies and the federal government about what types of communication are appropriate under the First Amendment.

Last year, the high court sidestepped requests to limit a provision in federal law that shields social media companies from lawsuits over offensive, harmful or violent content posted by users.

Trim Jacob Canter, a San Francisco attorney focused on technology-related issues, said in a statement that Monday’s ruling fit that mold.

“The Court’s decision in the two NetChoice cases did not make the big splash that some thought could occur. More legal work — and potentially much more legal work — at the lower courts will need to occur before a more definitive decision is reached about how states can regulate activity or expression on platforms,” Canter said.

Ann E. Marimow contributed to this report.

This post appeared first on The Washington Post
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