In Content Moderation Cases, Supreme Court Says ‘Try Again’ – But Makes It Clear Moderation Deserves First Amendment Protections

Today, the Supreme Court made it pretty clear that websites have First Amendment rights to do content moderation as they see fit, but decided to send the cases challenging laws in Florida and Texas back to the lower courts to be litigated properly, effectively criticizing the litigation posture of the trade groups, NetChoice and CCIA, which brought the challenges in the first place. However, in doing so, the majority of the court also was pretty explicit that the Fifth Circuit got everything wrong all over again.

The Supreme Court waited until the very last day of the term to finally release its decisions in the cases regarding Florida and Texas's social media moderation laws. I'm not going to go through a full history of either, as we've covered them in detail in the past, but both laws sought to place restrictions on how social media companies could moderate content in certain circumstances (generally political). The question at the heart of both cases was whether or not governments could compel private websites to host speech that those websites didn't wish to host (i.e., violated their terms of service).

Both district courts rejected that premise as obviously unconstitutional. The appeals courts split, however. The 11th Circuit agreed that the law was mostly unconstitutional (though it allowed one problematic provision on transparency to continue). The 5th Circuit went rogue, upending a century's worth of First Amendment law to say of course Texas has a right to compel websites to host speech that violates their rules.

The Supreme Court took its sweet time in dealing with this case, and now sends both cases back to the lower courts, saying that everyone did the analysis wrong: specifically by assuming the laws only applied to social media sites like Facebook and YouTube, when the reality is that they also probably apply to lots of other sites as well, and need to be analyzed on that basis.

The overall opinion on that point was 9-0, but there's a bit of messiness involved in the rest, with some concurrences in parts and Alito, Thomas, and Gorsuch concurring only with the bottom line that the cases were decided on the wrong basis but insisting that the rest of the majority opinion, written by Justice Kagan, is unnecessary dicta that has no impact.

And while that may technically be true, that dicta makes some pretty strong and important points regarding the First Amendment rights of private platforms to moderate as they see fit, while the concurrence by Alito seems to disagree with Alito's own dissent in the Murthy case from just last week.

Here's a relatively quick analysis of the decision, and I'm sure we'll have deeper, more nuanced analyses going forward.

Kagan starts off the majority opinion by citing back to the Reno v. ACLU case, which tossed out the Communications Decency Act (but not Section 230) as unconstitutional, and established some basic principles regarding how the First Amendment applies to the internet. And while the opinion notes that the internet has changed a lot, the First Amendment still applies:

But courts still have a necessary role in protecting those entities' rights of speech, as courts have historically protected traditional media's rights. To the extent that social media platforms create expressive products, they receive the First Amendment's protection. 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.

But, in the end, the cases are sent back on somewhat technical grounds, because the courts should have reviewed the facial nature" of the challenge. This was the issue that came up a lot during oral arguments. In short: was the challenge to the law itself (facial), or to how it was applied (as applied)? And, the majority basically says rather than spending so much time talking about what it would mean if the law were applied to social media sites specifically, the courts should have taken a step back to look at the entire law and whether or not it was constitutional at all.

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. 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.

In effect, this means that the underlying issues in this case are almost certainly going to come right back to the Supreme Court in another year or two. But still, Kagan makes it pretty clear that there are lots of elements in these laws that appear to attack the First Amendment rights of websites. In setting forth the relevant constitutional principles" it becomes pretty clear that the Fifth Circuit's total nuttiness concerns the court.

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. Texas has thus far justified the law as necessary to balance the mix of speech on Facebook's News Feed and similar platforms; and the record reflects that Texas officials passed it because they thought those feeds skewed against politically conservative voices. But this Court has many times held, in many contexts, 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. That principle works for social-media platforms as it does for others.

The majority's concern then is really just on how the case was litigated, in which it was brought as a facial challenge to the law itself, but litigated as if it were an as-applied challenge. And that meant the record is incomplete for a full facial challenge.

The parties have not briefed the critical issues here, and the record is underdeveloped. So we vacate the decisions below and remand these cases. That will enable the lower courts to consider the scope of the laws' applications, and weigh the unconstitutional as against the constitutional ones.

But, again and again, the decision still makes it pretty clear that six out of the nine Justices appear to recognize just how crazy these laws are, and just how wrong the Fifth Circuit was in deciding that the law in Texas was just peachy.

But it is necessary to say more about how the First Amendment relates to the laws' content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit. Recall that it 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. 49 F. 4th, at 494; see supra, at 8. And even if those activities were expressive, the court held, Texas's interest in better balancing the marketplace of ideas would satisfy First Amendment scrutiny. See 49 F. 4th, at 482. If we said nothing about those views, the court presumably would repeat them when it next considers NetChoice's challenge. It would thus find that significant applications of the Texas law-and so significant inputs into the appropriate facial analysis-raise no First Amendment difficulties. But that conclusion would rest on a serious misunderstanding of First Amendment precedent and principle. 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. Explaining why that is so will prevent the Fifth Circuit from repeating its errors as to Facebook's and YouTube's main feeds. (And our analysis of Texas's law may also aid the Eleventh Circuit, which saw the First Amendment issues much as we do, when next considering NetChoice's facial challenge.) But a caveat: Nothing said here addresses any of the laws' other applications, which may or may not share the First Amendment problems described below

The majority opinion, rightly, points to the important Miami Herald v. Tornillo case that said that newspapers have the right to decide not to publish someone's political views if they chose not to. Much of the debate in all of the cases around these laws was whether or not websites were more like newspapers, in which the Miami Herald ruling would apply, or if they were more like telephone lines, in which common carrier rules could apply. The majority pointing to Miami Herald suggests they realize (correctly) how the First Amendment works here.

The seminal case is Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). There, a Florida law required a newspaper to give a political candidate a right to reply when it published criticism and attacks on his record." Id., at 243. The Court held the law to violate the First Amendment because it interfered with the newspaper's exercise of editorial control and judgment." Id., at 258. Forcing the paper to print what it would not otherwise print," the Court explained, intru[ded] into the function of editors." Id., at 256, 258. For that function was, first and foremost, to make decisions about the content of the paper" and [t]he choice of material to go into" it. Id., at 258. In protecting that right of editorial control, the Court recognized a possible downside. It noted the access advocates' view (similar to the States' view here) that modern media empires" had gained ever greater capacity to shape" and even manipulate popular opinion." Id., at 249-250. And the Court expressed some sympathy with that diagnosis. See id., at 254. But the cure proposed, it concluded, collided with the First Amendment's antipathy to state manipulation of the speech market. Florida, the Court explained, could not substitute governmental regulation" for the crucial process" of editorial choice.

The fact that social media shows most content and only limits a very small amount doesn't change the First Amendment analysis from the Miami Herald case (despite what some nonsense peddlers insisted):

That those platforms happily convey the lion's share of posts submitted to them makes no significant First Amendment difference. Contra, 49 F. 4th, at 459-461 (arguing otherwise). To begin with, Facebook and YouTube exclude (not to mention, label or demote) lots of content from their News Feed and homepage. The Community Standards and Community Guidelines set out in copious detail the varied kinds of speech the platforms want no truck with. And both platforms appear to put those manuals to work. In a single quarter of 2021, Facebook removed from its News Feed more than 25 million pieces of hate speech content" and almost 9 million pieces of bullying and harassment content." App. in No. 22-555, at 80a. Similarly, YouTube deleted in one quarter more than 6 million videos violating its Guidelines. See id., at 116a. And among those are the removals the Texas law targets. What is more, this Court has already rightly declined to focus on the ratio of rejected to accepted content.

And, yes, the decision notes, users may attribute views to the platforms themselves based on what they allow or disallow:

Similarly, the major social-media platforms do not lose their First Amendment protection just because no one will wrongly attribute to them the views in an individual post. Contra, 49 F. 4th, at 462 (arguing otherwise). For starters, users may well attribute to the platforms the messages that the posts convey in toto. Those messages-communicated by the feeds as a whole-derive largely from the platforms' editorial decisions about which posts to remove, label, or demote. And because that is so, the platforms may indeed own" the overall speech environment. In any event, this Court has never hinged a compiler's First Amendment protection on the risk of misattribution. The Court did not think in Turner-and could not have thought in Tornillo or PG&E-that anyone would view the entity conveying the third-party speech at issue as endorsing its content.

As for the favorite two cases of those pushing these laws, Pruneyard (about a shopping mall) and FAIR (about allowing military recruiters on campus), the Court notes that the organizations involved in both were not expressive by nature, as opposed to social media, which is expressive.

To be sure, the Court noted in PruneYard and FAIR, when denying such protection, that there was little prospect of misattribution. See 447 U. S., at 87; 547 U. S., at 65. But the key fact in those cases, as noted above, was that the host of the third party speech was not itself engaged in expression. See supra, at 16-17. The current record suggests the opposite as to Facebook's News Feed and YouTube's homepage. When the platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices. And because that is true, they receive First Amendment protection.

Even more interesting: the Court notes that the Texas law almost certainly couldn't even survive lower levels of First Amendment scrutiny because the entire point of the law is to suppress free speech.

In the usual First Amendment case, we must decide whether to apply strict or intermediate scrutiny. But here we need not. Even assuming that the less stringent form of First Amendment review applies, Texas's law does not pass. Under that standard, a law must further a substantial governmental interest" that is unrelated to the suppression of free expression." United States v. O'Brien, 391 U. S. 367, 377 (1968). Many possible interests relating to social media can meet that test; nothing said here puts regulation of NetChoice's members off-limits as to a whole array of subjects. But the interest Texas has asserted cannot carry the day: It is very much related to the suppression of free expression, and it is not valid, let alone substantial.

Indeed, the statements from Texas politicians pushing the law undermine the law pretty clearly:

Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of speech that the major social-media platforms present. In this Court, Texas described its law as respond[ing]" to the platforms' practice of favoring certain viewpoints." Brief for Texas 7; see id., at 27 (explaining that the platforms' discrimination" among messages led to [the law's] enactment"). The large social-media platforms throw out (or encumber) certain messages; Texas wants them kept in (and free from encumbrances), because it thinks that would create a better speech balance. The current amalgam, the State explained in earlier briefing, was skewed" to one side. 573 F. Supp. 3d, at 1116. And that assessment mirrored the stated views of those who enacted the law, save that the latter had a bit more color. The law's main sponsor explained that the West Coast oligarchs" who ran social media companies were silenc[ing] conservative viewpoints and ideas." Ibid. The Governor, in signing the legislation, echoed the point: The companies were fomenting a dangerous movement" to silence" conservatives. Id., at 1108; see id., at 1099 ([S]ilencing conservative views is unAmerican, it's un-Texan and it's about to be illegal in Texas").

But a State may not interfere with private actors' speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. That is, indeed, a fundamental aim of the First Amendment. But the way the First Amendment achieves that goal is by preventing the government from tilt[ing] public debate in a preferred direction." Sorrell v. IMS Health Inc., 564 U. S. 552, 578-579 (2011). It is not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. And that is so even when those actors possess enviable vehicle[s]" for expression. Hurley, 515 U. S., at 577. In a better world, there would be fewer inequities in speech opportunities; and the government can take many steps to bring that world closer. But it cannot prohibit speech to improve or better balance the speech market.

And Texas can't do that:

They cannot prohibit private actors from expressing certain views. When Texas uses that language, it is to say what private actors cannot do: They cannot decide for themselves what views to convey. The innocent-sounding phrase does not redeem the prohibited goal. The reason Texas is regulating the content moderation policies that the major platforms use for their feeds is to change the speech that will be displayed there. Texas does not like the way those platforms are selecting and moderating content, and wants them to create a different expressive product, communicating different values and priorities. But under the First Amendment, that is a preference Texas may not impose.

And thus, while the Court is sending the case back to the lower courts to review correctly under the necessary standards for a facial challenge, it makes it clear that the Fifth Circuit really fucked up its analysis, even if just to how social media functions:

But there has been enough litigation already to know that the Fifth Circuit, if it stayed the course, would get wrong at least one significant input into the facial analysis. The parties treated Facebook's News Feed and YouTube's homepage as the heartland applications of the Texas law. At least on the current record, the editorial judgments influencing the content of those feeds are, contrary to the Fifth Circuit's view, protected expressive activity. And Texas may not interfere with those judgments simply because it would prefer a different mix of messages. How that matters for the requisite facial analysis is for the Fifth Circuit to decide. But it should conduct that analysis in keeping with two First Amendment precepts. First, presenting a curated and edited compilation of [third party] speech" is itself protected speech. Hurley, 515 U. S., at 570. And second, a State cannot advance some points of view by burdening the expression of others." PG&E, 475 U. S., at 20. To give government that power is to enable it to control the expression of ideas, promoting those it favors and suppressing those it does not. And that is what the First Amendment protects all of us from.

Of the concurrences, Justice Barrett leans harder on the idea that NetChoice should have brought an as applied" challenge, rather than a facial challenge. Justice Jackson also seems to feel that the litigation and the lower courts went too far in their analysis, and not just what was being challenged.

Justice Thomas wrote a concurrence with the underlying decision, but then whines for many pages about the rest of the majority's analysis regarding the Fifth Circuit, saying that it is a waste of time, and also that it's too early to be deciding these issues. He goes on for many pages slamming other Supreme Court decisions as well for being too broad. And, just to show how wrong he is, starts talking about common carriers," something even the final Fifth Circuit ruling wouldn't fully endorse.

Justice Alito wrote a similar concurrence (which Thomas and Gorsuch sign onto) basically saying we only agree that the cases should be sent back to the courts below to be evaluated as a facial challenge, and everything else in the majority decision is useless nonsense:

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.

I agree with the bottom line of the majority's central holding. But its description of the Florida and Texas laws, as well as the litigation that shaped the question before us, leaves much to be desired. Its summary of our legal precedents is incomplete. And its broader ambition of providing guidance on whether one part of the Texas law is unconstitutional as applied to two features of two of the many platforms that it reaches-namely, Facebook's News Feed and YouTube's homepage-is unnecessary and unjustified.

In the end, these cases are not over. They'll go back below and we'll get more decisions and there's a decent enough chance that the cases will end up back before the Supreme Court again. But there is a lot in the majority opinion which makes it clear that the Fifth Circuit's decision was absolutely as nutty and ridiculous as I described when it came out. And that part of the decision is supported by Kagan, Sotomayor, Roberts, Kavanaugh, and Barrett (in other words, five of the nine Justices). And it's mostly supported by Jackson (she just didn't sign on to the full analysis of the Texas law's many Constitutional problems, suggesting it was too early to do so).

This is a good sign for the overall internet and the First Amendment rights of websites to have editorial discretion in how they moderate.