The Volokh Conspiracy
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Supreme Court Seems Likely to Strike Down Florida and Texas Social Media Laws
The laws violate the First Amendment because they require social media sites to abjure most content moderation, and platform speech they disapprove of.
Yesterday, the Supreme Court heard oral arguments in NetChoice v. Paxton and Moody v. NetChoice, cases challenging Florida and Texas state laws barring major social media firms from using most types of content moderation, thereby requiring them to host content they disapprove of. The oral arguments suggest a clear majority of the justices believe these laws violate the First Amendment rights of social media providers. I agree with the assessment of my Cato Institute colleague Thomas Berry, who said "It appears that a majority of the Court is likely to find that the laws violate the First Amendment, at least when they force traditional social media sites like Facebook and X to change their moderation practices and disseminate speech they want to exclude."
Justice Elena Kagan summarized the issues best, when she noted, in the Florida argument, that, if social media firms have "content-based restrictions" on what kinds of speech they wish to host (e.g.—by keeping out what they consider "misinformation… [or] "hate speech or bullying") "why isn't that….a classic First Amendment violation for the state to come in and say, we're not allowing… you to enforce those sorts of restrictions even though… it's like an editorial judgment, you're excluding particular kinds of speech?"
Chief Justice John Roberts similarly emphasized that "[t]he First Amendment restricts what the government can do, and what the government is doing here is saying, you must do this, you must carry these people; you've got to explain if you don't,…[t]hat's not the First Amendment." Liberal Justice Sonia Sotomayor that the two states' laws are "so broad that they stifle speech just on their face."
If the New York Times or Fox News refuse to publish articles I submit to them because they disapprove of my views or even just because they think my writings will offend their audience, they surely have a First Amendment right to do so. If I don't like Fox's editorial policies, I can submit my content somewhere else. The same reasoning applies to Twitter or Facebook.
The states argue big social media companies have a special status because they reach so many people. But the same is true of major traditional media firms. If the New York Times rejects an op ed I submit, and I end up publishing it in The Hill or the Boston Globe (such things have actually happened to me!), I am likely to reach a much smaller audience than if the piece was accepted by the Times.
As with NYT or Fox News, social media firms seek to create a curated forum that caters to the interests of their audience, and avoids unnecessarily annoying or offending them. Few users actually want a completely unmoderated social media environment, or one that accepts all content that isn't illegal. Sites with right-wing owners, such as Elon Musk's Twitter/X or Donald Trump's Truth Social nonetheless have content-based restrictions in their terms of service.
Samuel Alito and Clarence Thomas—the two justices most sympathetic to the states—repeatedly characterized social media content moderation as "censorship." Justice Brett Kavanaugh effectively responded to this trope:
When the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment. When a private individual or private entity makes decisions about what to include and what to exclude, that's protected generally editorial discretion, even though you could view the private entity's decision to exclude something as "private censorship."
I think that's exactly right. If Fox News or the New York Times reject my content because they don't like my views, that is not censorship, but the exercise of their own First Amendment rights. The same goes if Elon Musk bars me from posting on his site. And that's true even if Fox, NYT, or Musk object to my content for dubious reasons, or even downright stupid ones. Ditto if they treat right-wing speech more favorably than the left-wing kind, or vice versa.
I think it's clear there are at least five or six justices who accept the distinctions made by Roberts and Kavanaugh, and therefore are inclined to rule against Florida and Texas on that basis.
In the Florida case, several justices suggested they might not be able to uphold the lower-court ruling against the law, because that state's legislation is so broad that it may cover websites that aren't expressive in nature at all, such as Uber or Etsy. The social media firm plaintiffs brought a facial challenge to the law, which may require them to prove that the law is unconstitutional in all or nearly of its applications. If the Court vacates the lower court decision on this basis, the case could be remanded, and the plaintiffs might have to amend their complaint to turn it into an "as applied" challenge focused on social media firms that exercise editorial discretion. Justice Sotomayor suggested they might remand the case, but also leave the preliminary injunction against the Florida law in place, in the meantime.
Fortunately, these kinds of procedural issues are much less significant in the Texas case, where the law in question is more clearly focused on big social media firms. In oral argument, Texas Solicitor General Aaron Nielson conceded his state's law does not cover firms like Uber and Etsy.
Thus, the Supreme Court could potentially vacate and remand the Florida decision, but rule against Texas. The precedent set by the latter ruling would govern any future litigation in the Florida case, and challenges to similar laws that might be enacted by other states.
The justices also discussed the states' argument that it can bar content moderation because social media firms are "common carriers." I think most of the Court did not find that theory persuasive. rightly. I criticized the badly flawed common carrier theory in some detail here.
Finally, there was much discussion of the issue of whether the tech firm plaintiffs' arguments that they are exercising editorial discretion somehow undermine their exemption from liability for posting user content under Section 230 of the Communications Decency Act. To my mind, this issue isn't really before the Court. And in any case, there is no real contradiction between holding that the tech firms are engaging in First Amendment-protected speech when they moderate content, and also holding that such speech is exempt from certain types of liability under Section 230. But I am no Section 230 expert, and I will leave this issue to commentators with greater knowledge of the relevant issues.
In sum, I am guardedly optimistic that the free speech will prevail in these cases, though procedural issues might lead to a remand in the Florida litigation.
In previous posts, I have explained why the Texas law is a threat to freedom of speech, and argued that these laws violate the Takings Clause of the Fifth Amendment, as well as the Free Speech Clause of the First Amendment (the takings issue is not before the Supreme Court).
For those keeping score on matters of ideological and jurisprudential consistency, I refer you to the relevant part of my September 2023 post about these cases:
I consistently opposed the Texas and Florida laws both before and after Elon Musk acquired Twitter (now called X). I didn't much like the content moderation policies of the pre-Musk management, and I like Musk's policies even less. But they nonetheless both have a First Amendment right to decide which speech they wish to host, and which they don't….
I am also one of the relatively few people who simultaneously support the Fifth Circuit's recent decision to bar the White House and other federal officials from coercing social media firms to take down content they deem "misinformation" and oppose that same courts' decision (with a different panel of judges) upholding the Texas social media law. The First Amendment bars government from both forcing social media firms to take down content the state disapproves of and forcing them to put up content the firms themselves object to.
