Supreme Court Remands Cases; Sidesteps First Amendment Question in Texas and Florida Social Media Laws Case

On July 1st, the Supreme Court vacated the lower court rulings in the cases of Moody v. Paxton and NetChoice v. Paxton over challenges brought by NetChoice to the Florida and Texas laws governing social media content moderation. In a 9-0 decision, the Court determined the Courts of Appeals for the Fifth and Eleventh Circuits did not properly evaluate the facial challenge brought by NetChoice, essentially sidestepping the question of whether either law violated the First Amendment.

The opinion, authored by Justice Kagan, stated that the lower courts did not consider the full set of applications of both laws and did not determine which applications are constitutional versus which ones are unconstitutional (and did not compare the two, as they should have). Justices Robert, Sotomayor, Kavanaugh and Barrett who joined the opinion in full, and Justice Jackson joined in part.

The opinion also stated that the Fifth Circuit had a “serious misunderstanding of the First Amendment” and was critical of the two laws, essentially outlining how they likely violate the First Amendment rights of the social media platforms. The opinion stated that the platforms’ “choices about which messages are appropriate give the feed a particular expressive quality and ‘constitute the exercise’ of protected ‘editorial control’’. In a concurrence, Justice Jackson suggested the Court should show restraint in deciding these questions.

Justice Alito authored a concurrence, joined by Justices Thomas and Gorsuch, that was skeptical that NetChoice stating had met its burden in proving that the laws are facially invalid. Justice Alito in his opinion made a distinction between “[n]ewspaper editors [that] are real human beings” compared to the “platforms, by contrast, [that] play no role in selecting the billions of texts and videos that users try to convey to each other.” He went on to state that “algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know.”

Both states’ laws will remain blocked while the challenge is relitigated in the lower courts and as such the Alliance will continue to monitor these cases.

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