On Monday, the Supreme Court refrained from making a final ruling on whether the Republican-backed laws in Florida and Texas that regulate social media companies’ content moderation practices violate constitutional free speech protections. Instead, the justices sent the cases back to lower courts for further deliberation under the First Amendment.
Justice Elena Kagan, writing for the court in a decision covering both cases, noted that “there is much work to do” before judges can determine if the laws should be struck down. The court suggested that the Texas law, in particular, might not withstand First Amendment scrutiny.
The justices were unanimous in their decision, with five others joining Kagan’s majority opinion. The laws in question restrict platforms from banning certain problematic users or limiting the reach of their posts. During oral arguments in February, some justices expressed concerns about the laws’ impact on free speech, while also considering that some provisions might be lawful.
The two cases highlight the growing influence of social media platforms and concerns from conservatives that moderation policies disproportionately affect them. Last week, in a related issue, the justices rejected a Republican attempt to limit contacts between the Biden administration and social media companies, which Republicans claimed pressured platforms to remove certain content.
Trade groups NetChoice and the Computer and Communications Industry Association (CCIA) challenged the Texas and Florida laws, arguing they infringe upon the free speech rights of companies by restricting their ability to choose what content to publish. The First Amendment’s free speech protections apply to government actions, not those by private companies.
The laws were enacted by Republican-led states in 2021 after Twitter, Facebook, and others banned former President Donald Trump following the January 6, 2021, Capitol riot. Twitter’s subsequent acquisition by billionaire Elon Musk, who has allowed previously banned users to return, somewhat undercut the rationale for the laws.
Both laws impose restrictions on content moderation and require companies to provide individualized explanations to users when content is removed. The Florida law prevents companies from banning public figures running for political office and restricts “shadow banning.” The Texas law prevents platforms from banning users based on their expressed views, with both laws requiring companies to disclose their moderation policies.
The states equated social media companies with the telecommunications industry, which transmits speech without editorial input, likening them to “common carriers” that are heavily regulated by the government without implicating free speech issues.
Emphasizing the politicized nature of the cases, President Joe Biden’s administration supported the legal challenges, while Trump backed the laws. Previously, the Supreme Court in May 2022 prevented the Texas law from going into effect, and an appeals court similarly blocked the Florida law.
These cases did not address the issue of legal immunity that internet companies have long enjoyed for user-posted content, an issue the court also sidestepped last year.