Opinion: Why the NetChoice ruling is a win for free speech
These cases concerned two state laws that sought to regulate what content or users that online platforms must allow. Both laws were focused on political speech, but with some significant differences.
The 2021 Florida law, SB 7072, focused on candidates for political office and allowed them to sue social media companies for “deplatforming,” while the 2021 Texas law, HB 20, focused on social media moderation that impacts specific viewpoints. Additionally, both laws contained transparency requirements mandating that social media platforms must disclose information about content moderation decisions.
NetChoice, an industry association representing affected companies, challenged both laws. The 5th Circuit and 11th Circuit appeals courts had reached different conclusions on the preliminary injunction issued upon the initial challenge to these laws.
In a 9-0 decision, the Supreme Court held that the challenges were not properly considered with regard to the underlying First Amendment issues at the lower court level; however, the majority opinion noted that “the editorial judgments influencing the content of those feeds are, contrary to the 5th Circuit’s view, protected expressive activity.”
As Justice Elena Kagan wrote in her opinion, “In sum, there is much work to do below on both these cases, given the facial nature of NetChoice’s challenges. But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”
While the overall decision was 9-0, all parts of the decision were not equally joined by the justices. Justice Amy Coney Barrett’s concurrence notes, “While the governing constitutional principles are straightforward, applying them in one fell swoop to the entire social-media universe is not.” She further noted an as-applied challenge, in which a law has already been applied as opposed to analyzing all situations in which it could apply, would more easily analyze questions such as whether such regulations impact private messaging or just public feeds. Justice Ketanji Brown Jackson’s concurrence emphasized the difficulty in evaluating a facial challenge, in which the law is alleged to be unconstitutional in all circumstances.
Justice Clarence Thomas concurred with the decision to vacate and remand, sending the cases back to the lower courts, but disagreed with Kagan “opin[ing] on certain applications of those statutes” and expressed other further concerns including about the court’s current approach to accepting such challenges to overly broad laws. Similarly, Justice Samuel Alito’s concurrence, joined by Justice Neil Gorsuch and Thomas, focused on the need for the court’s decision to be read narrowly as it relates to the underlying matters, arguing there is not current evidence “to prove that the Florida and Texas laws they challenged are facially unconstitutional” and criticizing the majority’s decision to “inexplicably single out a few provisions and a couple of platforms for special treatment.”
While the decision did not fully reach conclusions about the underlying constitutionality of the laws in Texas and Florida, the majority seemed to indicate strong skepticism that such laws would pass the appropriate degrees of legal scrutiny. Monday’s decision and the decisions to follow are not only about Big Tech, but will continue to be much more impactful to the future of free speech in general.
A Supreme Court decision expressly upholding the states’ requirements would prevent private platforms from engaging in content moderation on certain issues or taking certain censorship actions, thus making it harder for marginalized groups to create and maintain spaces that support their communities. This would be damaging not only for innovative services and the rights of private actors to make decisions about the content they do or do not host, but for the millions of Americans who have found a voice and community online. As Kagan’s opinion notes, “The government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas.”
Under the states’ attempts to regulate viewpoints or the speech of political candidates, a platform or group serving the LGBTQ+ community may have to allow homophobic content to be posted, and a platform serving the Jewish community may have to allow access to a member of the American Nazi Party running for political office. A platform featuring important conversations about eating disorder recovery, for example, might have to shut down or be forced to host pro-anorexia content to avoid being subject to claims that they are engaging in viewpoint discrimination.
Such issues extend far beyond the popular, large social media platforms. For example, the cases’ oral arguments cited how these laws might impact sites like Etsy, Discord and even Uber as they all have some element of user-generated content. Notably, the decision and particularly several of the concurrences seek clarity on the full the application of these laws in their remand to the lower courts.
Much of the content we interact with online is created by other users. Requirements like these laws in Florida and Texas would make it more difficult to host such content by dictating how it must be handled. Even comments sections on news sites could find themselves caught up in the requirements of these laws with significant daily fines, making it more difficult to remove spam or other problematic content.
In the aftermath of Monday’s ruling, we are likely to hear calls once again from critics of social media to change Section 230, the law that protects online platforms from lawsuits based on things their individual users might say on the platform and affirms their right to make content moderation decisions.
But the underlying issues are actually about the First Amendment rights of private businesses, not a special privilege of certain tech companies, and the lower courts are now tasked with more directly examining the issue.
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While questions about social media may seem novel, these cases build on existing First Amendment jurisprudence. As Kagan’s opinion notes, “The principle does not change because the curated compilation has gone from the physical to the virtual world.” Most of us correctly recognize this curation in the offline context: While we may dislike that a coffee shop allows certain meetings in its private room or that a bookstore carries certain books, we choose whether or not we patronize those places rather than calling on the government to shut them down.
The NetChoice cases will now move back to the 5th and 11th circuits for further analysis of the underlying First Amendment claims, but for now the laws remain blocked. Ultimately, they could end up back at the Supreme Court. Yet the majority opinion indicates a strong skepticism at best for the underlying claims of Florida and Texas, which claimed these laws were needed to ensure that online discussions were not skewed against conservative voices or certain political figures such as former President Donald Trump. As such, these cases will continue to serve an important role in discussions surrounding how the First Amendment works in the online world of the 21st century as well as the offline world.
Despite the Supreme Court's decision, the underlying First Amendment issues related to the Florida and Texas laws will be further analyzed by the lower courts. Judge Kagan's opinion emphasizes that private businesses, not just tech companies, have First Amendment rights, and these issues are not novel, but build upon existing First Amendment jurisprudence.
If the courts eventually allow these laws to stand, it could potentially impact various online platforms, including Etsy, Discord, and even Uber, as they all have user-generated content. This could make it more challenging for these platforms to manage and moderate content, potentially resulting in a less safe online environment for users.
