Supreme Court refuses to rule on the freedom of expression of technology platforms
The Supreme Court on Monday blocked a final resolution of challenges to Florida and Texas laws that limit social media companies’ power to moderate content, leaving in limbo an effort by Republicans who have promoted such legislation to end what they say is a bias against conservatives.
Instead, the justices unanimously agreed to send the cases back to lower courts for analysis. In the majority opinion, Justice Elena Kagan wrote that neither lower appeals court had properly analyzed the First Amendment challenges to the Florida and Texas laws.
The laws were prompted in part by the decision 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 effort to combat what they called Silicon Valley censorship. The laws, they added, promoted free speech and gave the public access to all points of view.
Opponents said the laws trample 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’s bans the platforms from permanently banning candidates for political office in the state, while Texas’s bans the platforms from removing content based on a user’s point of view.
“To generalize for a moment,” Judge Andrew S. Oldham of the United States Court of Appeals for the Fifth Circuit wrote a decision that upholds Texas lawFlorida law “prohibits all censorship of some loudspeakers,” while the one from Texas “bans some censorship of all speakers” when based on the views they express.
The two industry groups challenging the state laws — NetChoice and the Computer & Communications Industry Association — said the actions that Judge Oldham called censorship were editorial judgments protected by the First Amendment, which generally prohibits government restrictions on speech based on content and position prohibits.
The groups said social media companies were entitled to the same constitutional protections enjoyed by newspapers, which are generally free to publish without government intervention.
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 an order of a lower court blocking the Texas law.
“We reject the platforms’ attempt to waive free-wheeling censorship from the freedom of expression guaranteed by the Constitution,” Justice Oldham wrote for the majority. “The platforms are not newspapers. Their censorship is not a speech.”
But a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit largely maintained a preliminary injunction blocking Florida law.
“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or punish violations of their community standards, they are engaging in First Amendment-protected activity.”
The Biden administration supported the social media companies in the two cases: Moody to NetChoiceNo. 22-277, and NetChoice vs. PaxtonNo. 22-555.
A ruling that tech platforms have no editorial discretion to decide what posts to allow would expose users to a greater diversity of viewpoints. But it would also almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation.
The Supreme Court relied on two important precedents to determine where to draw the constitutional line.
One of them, Pruneyard shopping center against RobinsThe 1980 case involved a sprawling private shopping center in Campbell, California, whose 21 acres contained 65 stores, 10 restaurants, and a movie theater. It was open to the public but, as Judge William H. Rehnquist put it in his opinion for the court, “did not permit any public expressive activity, including the circulation of petitions, that is not directly related to its commercial purpose.”
That policy was challenged by high school students who opposed a UN resolution against Zionism and were prevented from handing out leaflets and collecting signatures on a petition.
Justice Rehnquist, who would become chief justice in 1986, wrote that the provisions of the state constitution requiring the mall to allow people to engage in expressive activities on its premises do not violate the mall’s First Amendment rights.
In the second case, Miami Herald vs TornilloIn 1974, the Supreme Court struck down a Florida law that would have given politicians the “right to respond” to newspaper articles critical of them.
The case was brought by Pat L. Tornillo, who was dissatisfied with colorful editorials in The Miami Herald opposing his candidacy for the Florida House of Representatives. The newspaper said Mr. Tornillo, a union official, was guilty of “racketeering statesmanship.”
Chief Justice Warren E. Burger, writing for a unanimous court in striking down the law, said that “the vast accumulation of unchecked power in the modern media empire” did not allow the government to usurp the role of editors in deciding what should be published.