Two high-profile cases-NetcChoice LLC v. Moody of Florida and NetChoice LLC v. Paxton of Texas-have been granted certiorari by the U.S. Supreme Court. Both cases strengthen the discourse regarding state laws that regulate large social media platforms, with Florida’s law on limiting content moderation by platforms, while Texas law prohibits social media companies from banning or down-ranking particular political viewpoints.
So rife is the controversy about social media regulation within First Amendment rights that the subject is directly within the jurisdiction of the Supreme Court-the course to resolve the schism between the Eleventh Circuit affirming an injunction on Florida’s law and the Fifth Circuit reversing an injunction on Texas’ similar law.
A Supreme Court Decision with a Ripple Effect. July 1, 2024. Finally, a decision has been rendered by the Supreme Court on this pending consolidated matter and its rulings from the Fifth and Eleventh Circuit have been vacated. Essentially, the Court ruled that neither of the lower courts had appropriately analyzed whether the Florida and Texas statutes were subject to the First Amendment as facially unconstitutional, and thus remanded the cases for reconsideration in the lower courts with direction.
The Supreme Court rendering a well-considered judgment on the matter gave lower courts helpful guidance on the interaction between state regulation and constitutional free speech protections. In her majority opinion, Justice Kagan seized the opportunity to set out important First Amendment considerations that must be weighed when states seek to regulate expressive content from social media platforms.
In Part III of the majority opinion, Justice Kagan discusses several different important factors that courts should consider in determining whether such laws infringe on free speech. Among these factors are whether the law limits speech based on content consideration, the character of the platform used for expression (sort of like a public forum), and whether there are big consequences for users being able to express themselves freely online. Conclusively, the Court states that social media platforms have a distinct role in the modern public discourse, and whenever regulation is contemplated, the First Amendment rights of both the platforms and their users must be balanced.
Justice Alito’s concurring opinion stated that the view taken was very narrow. While the majority opinion set out the framework for future litigation, not everybody agreed with the results thereof. Justice Samuel Alito, author of a concurring opinion, made it clear that he was not fully in concert with the majority’s reasoning. Although he agreed that the cases should be remanded for further analysis, he pointed out that the narrow nature of the Supreme Court’s decision remained paramount. According to him, the cases did not decide the larger constitutional issues surrounding these state laws.
He continued: “The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenge are facially unconstitutional. Everything else in the opinion is nonbinding dicta.” This proves the point that, while applying the Court’s decision to the real world has some ramifications, it does not give any flat answer as to whether, in fact, state laws regulating social media are unconstitutional. Rather, the Court’s ruling was a procedural ruling that left the door open for a more rigorous examination at the lower court level.
A legal tug of war is to follow…
Even after the Supreme Court had its say, the fog of uncertainty on social media regulation remains thick. The judgment may have lent some measure of relief to social media platforms trying to resist the laws in Florida and Texas, but there are still many questions left in its wake. The cases still remain in a posture of moving forward on remand to the lower courts, and thus they, too, will open up on further questions.
One of these questions is: Will the lower court evaluate the Florida and Texas laws based on the Supreme Court’s view and see if they amount to facial infringements of the First Amendment? Another is concerned with the regulations permissible on platforms providing user-generated content without stepping on free speech; there is an acknowledgment of the complexities involved, which would require a deep examination.
Besides, the removal from the Supreme Court leaving a case for the lower courts may be a demarcating point in the prosecution and defense of the laws. With social media regulation being a highly divisive issue, many legal challenges in the future can be expected, and so will the major ramifications for social media platforms’ operations, governance of speech online, and the realization of all the mentioned above.
What Next for Social Media and Law?
Social media companies are encouraged, albeit cautiously, by the Supreme Court decision. This judgment might mean states such as Florida and Texas will find it difficult to regulate content moderation and political speech on social media. But it bears noting that this case is very much alive. Social media platforms, many of which expressed concerns about overreach, will, likewise, face rigorous scrutiny by courts as the lower courts engage in deciphering and applying the Supreme Court’s clues.Again, this development provides questions on an even greater plane regarding the role of social media in contemporary society: Should states have the ability to regulate a platform’s moderation of speech? To what extent can the government impose regulation on any matter that can control the communication of information? The future of this case will influence the continued evolution of the relationship between technology, speech, and law.
Conclusion: Keep an Eye Out for Future Developments
Ultimately, the Supreme Court found that the NetChoice cases were a reminder that the legal questions surrounding social media regulation are still in their infancy. The guidance from the Court provides a jumping-off point for the lower courts to reconsider state laws and their compatibility with the First Amendment, but the ultimate outcome is still indefinite. As those cases progress and with others sprouting up here and there, one thing is clear: we shall be following this issue closely for a while in the future.
In the meantime, social media platforms, legal practitioners, and lawmakers, in whichever order they may choose, will have to stay alert as the courts continue to negotiate the balance between free speech and regulation. Watch for updates as these important cases progress.
