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Social Media Moderation Is Speech, Says Supreme Court

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The Supreme Court ruled today in two cases that could have a major impact on how social media platforms operate and how the government can interfere on behalf of political speech on these platforms.

The cases (NetChoice v. Paxton and Moody v. NetChoice) were brought by two tech industry trade groups—NetChoice and the Computer & Communications Industry Association—that opposed social media moderation laws in Florida and Texas.

The Court unanimously agreed to vacate decisions by the 11th Circuit and the 5th Circuit—which upheld a preliminary injunction on the Florida law (finding it likely did violate the First Amendment) and reversed a preliminary injunction on the Texas law (finding it did not likely violate the First Amendment), respectively—and to remand both cases for further review. While there’s a lot of analysis left to be done, that analysis must be “consistent with the First Amendment, which does not go on leave when social media are involved,” the court held.

‘Separate From the First Amendment Merits’

It’s not quite the crushing blow to these laws that many free speech advocates (including myself) were hoping for. But the court did admonish the 5th Circuit for its flawed interpretation of the First Amendment. And the Supreme Court’s own analysis here backs the tech groups’ position that social media platforms are engaged in protected expression when they decide what content to allow and how to present it.

“To the extent that social-media platforms create expressive products, they receive the First Amendment’s protection,” wrote Justice Elena Kagan in the court’s opinion:

And although these cases are here in a preliminary posture, the current record suggests that some platforms, in at least some functions, are indeed engaged in expression. In constructing certain feeds, those platforms make choices about what third-party speech to display and how to display it. They include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression. And while much about social media is new, the essence of that project is something this Court has seen before. Traditional publishers and editors also select and shape other parties’ expression into their own curated speech products. And we have repeatedly held that laws curtailing their editorial choices must meet the First Amendment’s requirements. The principle does not change because the curated compilation has gone from the physical to the virtual world. In the latter, as in the former, government efforts to alter an edited compilation of third-party expression are subject to judicial review for compliance with the First Amendment.

Kagan’s opinion was joined in full by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett. Justices Ketanji Brown Jackson, Clarence Thomas, Samuel Alito, and Neil Gorsuch concurred in the judgement while not fully concurring in the main opinion.

The court points out that the Texas and Florida laws “limit the platforms’ capacity to engage in content moderation—to filter, prioritize, and label the varied messages, videos, and other content their users wish to post,” and that they “require a platform to provide an individualized explanation to a user if it removes or alters her posts.” NetChoice “challenged both laws on their face—as a whole, rather than as to particular applications.”

“Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge,” Kagan writes.

The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms—as if, say, each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed. But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment. As explained below, the question in such a case is whether a law’s unconstitutional applications are substantial compared to its constitutional ones. To make that judgment, a court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry.

To do that right, of course, a court must understand what kind of government actions the First Amendment prohibits.

But About Those First Amendment Merits…

Where things get good is with the Court chastising the 5th Circuit for saying that the Texas law didn’t actually implicate speech and offering its view that not only do these laws regulate speech, they likely does so in an impermissible way. From the main opinion:

Contrary to what the Fifth Circuit thought, the current record indicates that the Texas law does regulate speech when applied in the way the parties focused on below—when applied, that is, to prevent Facebook (or YouTube) from using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts in its News Feed (or homepage). The law then prevents exactly the kind of editorial judgments this Court has previously held to receive First Amendment protection. It prevents a platform from compiling the third-party speech it wants in the way it wants, and thus from offering the expressive product that most reflects its own views and priorities. Still more, the law—again, in that specific application—is unlikely to withstand First Amendment scrutiny.

During oral arguments for the cases, back in February, Supreme Court justices already seemed skeptical that the laws were constitutional.

It doesn’t take a legal genius to see why. The Texas and Florida laws—passed at a time when concern that tech companies are biased against conservatives had reached a fever pitch—forbid social media platforms from engaging in certain sorts of content moderation. The Florida law forbids large platforms from removing or suppressing content by or about political candidates, and also for taking action against any journalist or media enterprise “based on the content of its publication or broadcast.” The Texas law barred viewpoint-based suppression or blocking of content on large social platforms, which it declared “common carriers.” In effect, these laws compel speech, mandating private companies broadcast messages with which they may wish to dissociate.

Backers of the Texas and Florida laws argued that because certain social media policies weren’t fostering free speech, we needed the government to step in and enforce more speech-friendly policies on these platforms. It’s a position so ironic it would be comic if it was not so ubiquitous these days.

Of course, private companies can encourage or discourage a culture of free speech, and I would prefer the former. But at the end of the day, they are private companies, they can set their own rules, and users who don’t like them can take their messages elsewhere. The First Amendment does not guarantee any of us the right to say anything in any private space. It protects against the government shutting down our speech—or compelling it. You cannot “protect free speech” by letting the government dictate what must be said.

Rebuking the Idea that the Laws Don’t Regulate Speech

While the Florida and Texas social media laws haven’t been wholly defeated, the Supreme Court’s ruling here is still good news for defenders of free speech online. (NetChoice is certainly taking it as a win.) The court leaves no question that at least parts of these laws infringe our First Amendment rights.

The Kagan opinion resoundingly rejects the ideas behind the Florida and Texas laws, noting that the court has repeatedly held “that it is no job for government to decide what counts as the right balance of private expression—to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.”

It also offers guidance on how the First Amendment applies here—calling the need for this guidance “especially stark for the Fifth Circuit,” which “held that the content choices the major platforms make for their main feeds are ‘not speech’ at all, so States may regulate them free of the First Amendment’s restraints,” and that “even if those activities were expressive, Texas’s interest in better balancing the marketplace of ideas would satisfy First Amendment scrutiny.”

The 5th Circuit’s analysis rests “on a serious misunderstanding of First Amendment precedent and principle,” writes Kagan. “The Fifth Circuit was wrong in concluding that
Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression. And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds.”

Kagan did offer a caveat: “Nothing said here addresses any of the laws’ other applications, which may or may not share the First Amendment problems described below.” That’s what the appellate courts will have to examine next.

More Sex & Tech News

• Etsy is cracking down on sexually oriented products. The company announced last week that is banning the sale of most sex toys and merchandise or models that depict nudity or sex acts.

• “The House Energy and Commerce Committee unexpectedly scrapped plans to discuss nearly a dozen bills” last Thursday, Law360 reports. The package included such controversial measures as the Kids Online Safety Act and the American Privacy Rights Act.

• In a new court brief, a gaggle of civil liberties and free press groups (including the Electronic Frontier Foundation, the Freedom of the Press Foundation, TechFreedom, and the Center for Democracy and Technology) oppose the Foreign Adversary Controlled Applications Act, aka the law passed to ban TikTok or force its sale. The groups “urge the court to see the act for what it is: a sweeping ban on free speech that triggers the exacting scrutiny under the First Amendment.”

• Social media has flattened slang and we’re all worse off for it, argues Dan Brooks. It “has standardized our language to the point that exformation has become endangered. For the past 10 years, the English language’s wealth of previously exformative, subcultural slang has dispersed into a single, universal argot that is simply Phone.”

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Austin | 2019
(Austin | 2019)

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