Supreme Court Declines to Rule on Tech Platforms’ Free Speech Rights

The Supreme Court sidestepped a definitive resolution on Monday in a pair of cases challenging state laws aimed at curbing the power of social media companies to moderate content. The ruling left in limbo an effort by Republicans who had promoted the legislation as a remedy to what they say is a bias against conservatives.

It was the most recent instance of the Supreme Court considering — and then dodging — a major decision on the parameters of speech on social media platforms.

The state laws differ in their details. Florida’s prevents the platforms from permanently barring candidates for political office in the state, while Texas’ prohibits the platforms from removing any content based on a user’s viewpoint.

The justices unanimously agreed to return the cases to lower courts for analysis. Justice Elena Kagan, writing for the majority, noted that neither lower appeals courts had properly analyzed the First Amendment challenges to the Florida and Texas laws.

“In sum, there is much work to do below on both these cases,” Justice Kagan wrote, adding, “But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”

Under the narrow ruling, the state laws remain intact, but lower court injunctions also remain in place, meaning both laws continue to be paused.

Although the justices voted 9-to-0 to return the cases to the lower courts, they splintered on the reasoning, with several writing separate concurrences to lay out their positions. Justice Kagan was joined by Chief Justice John G. Roberts Jr., along with Justices Sonia Sotomayor, Brett M. Kavanaugh and Amy Coney Barrett. Justice Ketanji Brown Jackson joined, in part.

In a separate concurring opinion, Justice Barrett hinted at how lower courts might analyze the cases.

Justice Barrett wrote that the federal appeals court that examined the Florida case showed an “understanding of the First Amendment’s protection of editorial discretion” that “was generally correct,” while the appeals court that examined the Texas case did not.

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The Biden administration had supported the social media companies in both cases, Moody v. NetChoice, No. 22-277, and NetChoice v. Paxton, No. 22-555.

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Justice Kagan then provided a clue about how a majority of the justices may be thinking about how to apply the First Amendment to these types of laws.

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“In constructing certain feeds, those platforms make choices about what third-party speech to display and how to display it,” Justice Kagan wrote. “They include and exclude, organize and prioritize — and in making millions of those decisions each day, produce their own distinctive compilations of expression.”

She added that although social media is a newer format, “the essence” is familiar. She analogized the platforms to traditional publishers and editors who select and shape others’ expressions.

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