The Supreme Court on Monday avoided a final ruling on challenges to laws in Florida and Texas that limit the power of social media companies to moderate content, leaving in limbo an effort by Republicans who have promoted such legislation to remedy what They say it is a bias against conservatives.
Instead, the justices unanimously agreed to return the cases to lower courts for analysis. In the majority opinion, Justice Elena Kagan wrote that none of the lower appeals courts had adequately analyzed First Amendment challenges to the Florida and Texas laws.
The laws were prompted in part by decisions by some platforms to ban President Donald J. Trump following the attack on the Capitol on January 6, 2021.
Supporters of the laws said they were an attempt to combat what they called Silicon Valley censorship. The laws, they added, encouraged freedom of expression, giving the public access to all points of view.
Opponents said the laws trampled on the platforms’ own First Amendment rights and would turn them into cesspools of filth, hate and lies.
The two laws differ in their details. Florida prevents platforms from permanently banning candidates for political office in the state, while Texas prohibits platforms from removing any content based on a user’s point of view.
“To generalize somewhat,” wrote Judge Andrew S. Oldham of the United States Court of Appeals for the Fifth Circuit in a decision upholding the Texas law, Florida law “prohibits all censorship of some speakers”, while that of Texas “prohibits some censorship of all “speakers” when they rely on the opinions they express.
The two trade associations challenging the state laws — NetChoice and the Computer & Communications Industry Association — said the actions Judge Oldham called censorship were editorial judgments protected by the First Amendment, which generally prohibits government restrictions on speech based on the content and point of view.
The groups said social media companies were entitled to the same constitutional protections enjoyed by newspapers, which are generally free to publish without government interference.
Federal appeals courts reached conflicting conclusions in 2022 about the constitutionality of the two laws.
A divided three-judge panel of the Fifth Circuit overturned a lower court’s order blocking the Texas law.
“We reject the platforms’ attempt to extract arbitrary censorship from the Constitution’s guarantee of free speech,” Judge Oldham wrote for the majority. “The platforms are not newspapers. Their censorship is not speech.”
But a unanimous three-judge panel of the 11th U.S. Circuit Court of Appeals largely upheld a preliminary injunction blocking Florida’s law.
“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms decide to remove users or posts, deprioritize content in viewers’ feeds or search results, or penalize violations of their community standards, they engage in activity protected by the First Amendment.”
The Biden administration sided with social media companies in both cases, Moody v. NetChoice, No. 22-277, and NetChoice v. Paxton, No. 22-555.
A decision that tech platforms have no editorial discretion to decide which posts to allow would have exposed users to a wider variety of viewpoints, but would almost certainly amplify the uglier aspects of the digital age, including hate speech and the misinformation.
The Supreme Court relied on two key precedents to determine where to draw the constitutional line.
One of them, Pruneyard Shopping Center v. Robins, in 1980, concerned a huge private shopping center in Campbell, California, whose 21 acres included 65 stores, 10 restaurants and a movie theater. It was open to the public but did not permit, as Justice William H. Rehnquist put it in his opinion to the court, “any publicly expressive activity, including the circulation of petitions, not directly related to its commercial purposes.”
The policy was challenged by high school students who opposed a UN resolution against Zionism and were prevented from distributing leaflets and asking for signatures for a petition.
Justice Rehnquist, who would be elevated to chief justice in 1986, wrote that the state constitutional provisions requiring the mall to allow people to engage in expressive activities on its property did not violate the center’s rights under the First Amendment.
In the second case, Miami Herald v. Tornillo, the Supreme Court in 1974 struck down a Florida law that would have given politicians a “right to respond” to newspaper articles critical of them.
The case was brought by Pat L. Tornillo, who was unhappy with colorful Miami Herald editorials opposing his candidacy for the Florida House of Representatives. The paper said Tornillo, a union official, had committed “political extortion.”
Chief Justice Warren E. Burger, writing for a unanimous court to strike down the law, said that “the vast accumulations of unchecked power in the modern media empire” did not permit the government to usurp the role of publishers in deciding what should be published.
