The Volokh Conspiracy
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Supreme Court Remands Texas and Florida Social Media Cases - But Strongly Suggests the States' Laws Violate the First Amendment
The majority opinion makes clear that social media content moderation is an activity protected by the First Amendment. That likely dooms large parts of the state laws restricting content moderation.
In today's ruling in Moody v. NetChoice, addressing challenges to Texas and Florida laws severely limiting social media content moderation, the Supreme Court declined to issue a final ruling on the merits, for procedural reasons. But in remanding the cases to the lower courts, Justice Elena Kagan's majority opinion also established standards under which the major provisions of the two laws would almost certainly have to be ruled unconstitutional. I was highly critical of last week's decision denying standing to plaintiffs challenging the federal government's efforts to pressure social media firms to take down posts. Today's ruling is far better. Hopefully, the Court will eventually make clear that the government is presumptively barred from either forcing social media providers to take down posts it disapproves of or forcing them to post material the website owners object to.
The reason why the Court decided not to issue a final decision is that the lower courts did not engage in extensive enough fact-finding and analysis to consider a facial challenge to the constitutionality of the laws as a whole:
Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice's challenge. The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms…. But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment. As explained below, the question in such a case is whether a law's unconstitutional applications are substantial compared to its constitutional ones. To make that judgment, a court must determine a law's full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry…..
To succeed on its First Amendment claim, NetChoice must show that the law at issue (whether from Texas or from Florida) "prohibits a substantial amount of protected speech relative to its plainly legitimate sweep." Hansen, 599 U. S., at 770. None of the parties below focused on that issue; nor did the Fifth or Eleventh Circuits. But that choice, unanimous as it has been, cannot now control. Even in the First Amendment context, facial challenges are disfavored, and neither parties nor courts can disregard the requisite inquiry into how a law works in all of its applications. So on remand, each court must evaluate the full scope of the law's coverage. It must then decide which of the law's applications are constitutionally permissible and which are not, and finally weigh the one against the other. The need for NetChoice to carry its burden on those issues is the price of its decision to challenge the laws as a whole.
But in remanding the cases, the majority lays out "relevant constitutional principles,
and explain[s] how" the Fifth circuit "failed to follow them" when it upheld the Texas social media (the Eleventh Circuit had invalidated most of Florida's law). The Court's three principles are devastating to the states' laws:
First, the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others' speech, is directed to accommodate messages it would prefer to exclude. "[T]he editorial function itself is an aspect of speech." Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 737(1996) (plurality opinion)….. And that is as true when the content comes from third parties as when it does not. (Again, think of a newspaper opinion page or, if you prefer, a parade.) Deciding on the third-party speech that will be included in or excluded from a compilation—and then organizing and presenting the included items—is expressive activity of its own. And that activity results in a distinctive expressive product. When the government interferes with such editorial choices—say, by ordering the excluded to be included— it alters the content of the compilation. (It creates a different opinion page or parade, bearing a different message.) And in so doing—in overriding a private party's expressive choices—the government confronts the First Amendment…
Second, none of that changes just because a compiler includes most items and excludes just a few…. That was the situation in Hurley. The St. Patrick's Day parade at issue there was "eclectic": It included a "wide variety of patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes, as well as conflicting messages." 515 U. S., at 562. Or otherwise said, the organizers were "rather lenient in admitting participants." Id., at 569. No matter. A "narrow, succinctly articulable message is not a condition of constitutional protection." Ibid. It "is enough" for a compiler to exclude the handful of messages it most "disfavor[s]." Id., at 574….
Third, the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas. Of course, it is critically important to have a well-functioning sphere of expression, in which citizens have access to information from many sources. That's the whole project of the First Amendment. And the government can take varied measures, like enforcing competition laws, to protect that access…. But in case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm.
Central elements of the Texas and Florida laws are unconstitutional under this approach. Social media firms are undeniably "compiling and curating others' speech" and under the state laws, they are "directed to accommodate messages [they] would prefer to exclude." The firms may choose to exclude only a small percentage of the vast rage of speech users might want to post. But the Court's second principle rightly says that doesn't matter.
Finally, if "the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas," that destroys the central rationale for the two state laws. As the Court notes later in its opinion, "improving" or "better balancing" the "marketplace" of ideas is precisely the objective of Texas's law, which was largely motivated by concerns that the social media platforms were biased against various types of right-wing speech.
Later in the opinion, Justice Kagan notes the implications for the Texas law:
The platforms may attach "warning[s], disclaimers, or general commentary"—for example, informing users that certain content has "not been verified by official sources." Id., at 75a. Likewise, they may use "information panels" to give users "context on content relating to topics and news prone to misinformation, as well as context about who submitted the content…."
But sometimes, the platforms decide, providing more information is not enough; instead, removing a post is the right course. The platforms' content-moderation policies also say when that is so. Facebook's Standards, for example, proscribe posts—with exceptions for "news-worth[iness]" and other "public interest value"—in categories and subcategories including: Violence and Criminal Behavior (e.g., violence and incitement, coordinating harm and publicizing crime, fraud and deception); Safety (e.g., suicide and self-injury, sexual exploitation, bullying and harassment); Objectionable Content (e.g., hate speech, violent and graphic content); Integrity and Authenticity (e.g., false news, manipulated media). Id., at 412a–415a, 441a–442a…. The platforms thus unabashedly control the content that will appear to users, exercising authority to remove, label or demote messages they disfavor….
Except that Texas's law limits their power to do so. As noted earlier, the law's central provision prohibits the large social-media platforms (and maybe other entities6) from "censor[ing]" a "user's expression" based on its "viewpoint."§143A.002(a)(2); see supra, at 7. The law defines "expression" broadly, thus including pretty much anything that might be posted. See §143A.001(2). And it defines "censor" to mean "block, ban, remove, deplatform, demonetize, deboost, restrict, deny equal access or visibility to, or otherwise discriminate against expression." §143A.001(1).7 That is a long list of verbs, but it comes down to this: The platforms cannot do any of the things they typically do (on their main feeds) to posts they disapprove—cannot demote, label, or remove them whenever the action is based on the post's viewpoint….
And we have time and again held that type of regulation to interfere with protected speech. Like the editors, cable operators, and parade organizers this Court has previously considered, the major social-media platforms are in the business, when curating their feeds, of combining "multi-farious voices" to create a distinctive expressive offering. Hurley, 515 U. S., at 569. The individual messages may originate with third parties, but the larger offering is the platform's. It is the product of a wealth of choices about whether—and, if so, how—to convey posts having a certain content or viewpoint. Those choices rest on a set of beliefs about which messages are appropriate and which are not (or which are more appropriate and which less so). And in the aggregate they give the feed a particular expressive quality.
I think the Court's principles are broad enough to justify facial invalidation of the Texas and Florida laws, because ruling that the restrictions on social-media content moderation are unconstitutional is enough to show that the laws "prohibit… a substantial amount of protected speech relative to [their] plainly legitimate sweep." But even if the facial challenges fail, the social media firms could easily file as-applied challenges focusing more narrowly on content moderation. And those would almost certainly succeed.
In his opinion concurring in judgment, Justice Samuel Alito (joined by Gorsuch and Thomas) claims the Court's discussion of First Amendment standards is merely nonbinding dicta. But it pretty obviously sets out principles the lower courts must follow on remand.
Alito also argues that not enough is known about the firms' content moderation policies, and how their content moderation policies work, in part because the firms have not fully revealed how their algorithms function. But, as the majority shows, we do know enough to see that the major social media firms do restrict posts based on content, and that they favor some messages, while disfavoring others. That's exactly why the states decided to enact the challenged laws in the first place!
The dissent's argument that there are different social media platforms with different contents also doesn't do much to undercut the majority. All of the major platforms have extensive expressive content, and all impose editorial restrictions based at least in part on the subject matter and viewpoint. Perhaps this is less true of some platforms (such as Etsy) which mainly just let users sell products, rather than convey messages. But the Texas and Florida laws cover enough political and social commentary that they clearly "prohibit… a substantial amount of protected speech relative to [their] plainly legitimate sweep."
Justice Alito also alludes, briefly, to the major social media platforms' extensive reach and influence. Interestingly, this issue - much focused on by commentators on these cases - plays almost no role in the majority's analysis, and only a minor one in the dissent. The same goes for the argument that social media firms' content moderation policies can be regulated because the firms are similar to "common carriers." The majority doesn't explicitly mention this theory, though much of its analysis implicitly rebuts it, by pointing out the many ways in which social media firms do not simply serve all comers. Justice Alito only briefly mentions the common carrier theory in a footnote. I criticized the common carrier and influence arguments in detail here.
In sum, while the Court did not reach a decision on the merits, the standards it lays out are an important win for the social media firms - and for freedom of speech.
