A unanimous Supreme Court on Monday, July 1, ruled that a dispute between social media giants such as YouTube, Facebook, and X, (formerly Twitter) and two states that tried to limit their editorial powers, must be reconsidered by two lower federal courts.
In Moody v. NetChoice and NetChoice v. Paxton, Justice Elena Kagan writing for the Court said the lower courts needed to change their approach in both cases. “Neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms,” she determined.
Under First Amendment legal principles, a challenge to a law brought “on its face” must prove the law is likely unconstitutional in all of its applications. In comparison, as-applied challenges claim that a law violates the Free Speech Clause as applied to a particular activity or intended activity, instead of claiming the entire law is unconstitutional.
The NetChoice cases involved the constitutionality of Florida and Texas laws that sought to regulate privately held digital companies with huge numbers of online users. The two states wanted the services regulated as “common carriers,” a decision that would have had a major impact on their business models.
Two trade associations representing the internet platforms, NetChoice LLC and the Computer & Communications Industry Association, challenged both laws. The 11th Circuit Court of Appeals ruled that the Florida law violated the social media companies’ First Amendment free speech rights, while the Fifth Circuit Court of Appeals upheld the Texas law.
Kagan said NetChoice’s decision to use a facial challenge to both laws led to the Court remanding the cases. “So far in these cases, no one has paid much attention to that issue. Analysis and arguments below focused mainly on how the laws applied to the content-moderation practices that giant social-media platforms use on their best-known services to filter, alter, or label their users’ posts,” Kagan wrote. “They did not address the full range of activities the laws cover, and measure the constitutional against the unconstitutional applications.”
“Because this is ‘a court of review, not of first view,’ … this Court cannot undertake the needed inquiries. And because neither the Eleventh nor the Fifth Circuit performed the facial analysis in the way described above, their decisions must be vacated and the cases remanded,” she concluded.
Four other justices filed concurring opinions. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, agreed with the majority’s judgment but contested points made in Kagan’s opinion. “The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional. Everything else in the opinion of the Court is nonbinding dicta,” Alito concluded.
“Nevertheless, the majority is undeterred. It inexplicably singles out a few provisions and a couple of platforms for special treatment. And it unreflectively assumes the truth of NetChoice’s unsupported assertion that social-media platforms—which use secret algorithms to review and moderate an almost unimaginable quantity of data today—are just as expressive as the newspaper editors who marked up typescripts in blue pencil 50 years ago.”
“A facial challenge to either of these laws likely forces a court to bite off more than it can chew,” wrote Justice Amy Coney Barrett in her concurrence. “While the governing constitutional principles are straightforward, applying them in one fell swoop to the entire social-media universe is not.”
Justice Ketanji Brown Jackson also pointed to the need for the lower courts to reconsider the cases. “The Eleventh Circuit failed to appreciate the nature of this challenge, and the Fifth Circuit did not adequately evaluate it,” she said.
The Florida case, Moody, was an appeal concerning a Florida law that imposed neutrality provisions, hosting provisions, and disclosure obligations on the social media giants. The Texas case, Paxton, barred the companies from moderating content in a way that discriminated against viewpoints while requiring the companies to justify moderation decisions.
The Supreme Court had limited arguments to two questions: Whether the laws’ content-moderation restrictions complied with the First Amendment, and whether the laws’ individualized-explanation requirements complied with the First Amendment.
The internet platforms are owned by private companies, and usually the First Amendment protects private free speech rights by forbidding government control and censorship of their content. However, some privately owned companies are considered common carriers, a special class of business that dominates a market and provides a public service. For example, telecommunications companies that provide communications services are considered common carries and are regulated by state and local governments.
Scott Bomboy is the editor in chief of the National Constitution Center.
