The Supreme Court just ducked a major decision in its social media ‘censorship’ cases

In a unanimous opinion Monday, the Supreme Court declined to rule on the constitutionality of laws in Florida and Texas that would require online platforms to publish political speech they would otherwise remove. While the justices declined to rule on the merits—instead vacating the lower courts’ rulings and sending both cases back to the lower courts for review—they agreed that government efforts to control what online platforms publish represents a threat to those platforms’ First Amendment rights.

“On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana,” Justice Elena Kagan wrote in a majority opinion. Justice Kagan was joined in her opinion by Chief Justice John Roberts, as well as justices Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett. The remaining four justices wrote or joined concurring opinions.

While the Court did not deliver an overt win to either side, the two tech advocacy groups that brought the case, Netchoice and the Computer & Communications Industry Association, hailed the decision as a victory, all the same. “As our cases head back to the lower courts for consideration, the Supreme Court agreed with all our First Amendment arguments,” Chris Marchese, director of the NetChoice Litigation Center, wrote in a statement. “Free speech is a cornerstone of our republic.”

The cases—Netchoice v. Moody and Netchoice v. Paxton—hinge on two related laws that were passed in 2021. Florida’s law, S.B. 7072, prohibits tech platforms from, among other things, deplatforming political candidates and would subject them to extensive disclosure requirements. Texas’s law, meanwhile, H.B. 20, prevents platforms from moderating content based on the speaker’s viewpoint. In earlier rulings, the Fifth Circuit appeals court had upheld the Texas law, while the Eleventh Circuit struck down the Florida law, creating a split in the courts which both sides in the cases were counting on the Supreme Court to resolve. 

But in the majority opinion, Justice Kagan argued the lower courts had not adequately grappled with all of the possible applications of such a law. As a result, Kagan wrote, the Supreme Court could not rule that the laws are broadly unconstitutional. “[E]ach court must evaluate the full scope of the law’s coverage. It must then decide which of the law’s applications are constitutionally permissible and which are not, and finally weigh the one against the other,” Kagan wrote. 

And yet, the majority also argued that if the Fifth Circuit upheld the Texas’ law, it would likely get the decision wrong. Contrary to the Fifth Circuit’s ruling, Kagan wrote, the decisions that a platform like Facebook makes about what appears on News Feed are protected by the First Amendment. The government of Texas is only intervening because it would prefer Facebook make different decisions. “But under the First Amendment,” Kagan wrote, “that is a preference Texas may not impose.”

Some First Amendment scholars praised the courts’ decision to tread carefully in its ruling, giving neither governments too much control over online speech, nor online platforms too much freedom from regulation. “The Court was entirely right to reject these requests, both of which would have done real harm to our democracy,” Jameel Jaffer, executive director of the Knight First Amendment Institute, wrote in a statement. 

Other staunch supporters of online platforms’ free speech rights viewed the court’s trepidation as flawed. “Florida’s and Texas’s laws are obvious First Amendment trainwrecks,” Corbin Barthold, director of appellate litigation for the tech advocacy group TechFreedom, wrote in a statement. “Unfortunately, the justices got turned around at oral argument, getting distracted by procedural issues that should not have affected the outcome of this dispute.” 

The decision comes just days after the court ruled in another high-stakes case for the tech industry, Murthy v. Missouri. In that case, state attorneys general for Louisiana and Missouri as well as a group of social media users argued that the Biden administration had put so much pressure on social media platforms to remove objectionable posts that it had turned those platforms into state actors, capable of violating their users’ First Amendment rights. 

The majority sided with the Biden administration, finding that the plaintiffs didn’t have standing to sue. But in the dissent in the case, Justice Samuel Alito wrote that “government officials may not coerce private entities to suppress speech,” which court watchers in Netchoice’s camp read as a promising sign. If the Biden administration can’t pressure platforms to censor certain posts, can Florida and Texas really force platforms to publish them? 

The answer to that question will now be up to the lower courts to decide. In his statement Monday, Marchese of Netchoice said his organization “will continue to vigorously defend Americans’ rights to free expression online.”

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