Supreme Court orders rethink of no-moderation internet laws in Texas, Florida

The US Supreme Court on Monday told lower courts to reconsider separate, conflicting rulings on social media laws in Florida and Texas because those courts failed to properly think about the free speech rights of internet platforms.

Florida’s SB 7072 and Texas’ House Bill 20 were enacted in 2021 by conservative lawmakers, and both limit the content moderation options for internet platforms, forcing them to host speech they might otherwise remove based on their own choice.

The laws were subsequently challenged by tech trade organizations NetChoice and the Computer & Communications Industry Association for violating the First Amendment rights of internet operators.

The district courts that heard the cases granted preliminary injunctions blocking the laws, based on concerns that the legislation trampled free speech rights.

But in 2022, the Eleventh Circuit Court of Appeals partially upheld the district court injunction blocking Florida’s law. Meanwhile, the Fifth Circuit Court of Appeals suspended the district court injunction that prevented Texas’s law from taking effect.

Rather than resolve the difference of opinion on the application of the First Amendment, the Supreme Court, in a 9-0 decision [PDF], told the lower courts to try again.

But it’s clear that the Supreme Court doesn’t think much of the reasoning of the Fifth Circuit, which according to legal researcher Adam Feldman saw its decisions in the 2019-2022 period “reversed more than twice as frequently as they have been affirmed.”

A state may not interfere with private actors’ speech to advance its own vision of ideological balance

The Supreme Court majority opinion from Justice Kagan says: “Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of viewpoints that major platforms present. But a state may not interfere with private actors’ speech to advance its own vision of ideological balance.”

The Fifth Circuit’s basic grasp of the law was also called into question. The Supreme Court notes that the Fifth Circuit’s decision “rested on a serious misunderstanding of First Amendment precedent and principle.”

Marc Epstein, senior counsel with the Digital Justice Initiative at the Lawyers’ Committee for Civil Rights Under Law, praised the ruling in a statement also sent to The Register.

“We’re pleased at the decision today,” he said. “It means that social media companies can still remove hate and disinformation on their platforms.”

Epstein added that with their rights affirmed, social media companies need to step up and do better in their efforts to moderate hate speech and disinformation.

The American Civil Liberties Union (ACLU), which earlier this year joined a friend-of-the-court brief filed by Reporters Committee for Freedom of the Press on the issue, also welcomed the decision as a win for free speech.

“The court’s recognition that the government cannot control social media in an effort to impose its own vision of what online speech should look like is crucial to protecting all of our right to speak our minds and access information on the internet,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, in a statement.

While the state laws would fail constitutional scrutiny if applied to a curated news stream, said Kirk McGill, an attorney with Hall Estill, they might survive a challenge if applied to a more automated content moderation process.

“In other words, the court held that the free speech rights of social media companies are only implicated where they are engaging in expression by picking and choosing what postings to show,” said McGill. “The more automated that process, the less First Amendment implications there are, and therefore the less free speech protections would apply.”

The more automated that process, the less First Amendment implications there are, and therefore the less free speech protections would apply

This may have implications for AI-based moderation, because automated processes could be deemed insufficiently expressive to qualify for First Amendment protection, McGill suggests.

The decision, he added, is also likely to make it harder for ByteDance, the Chinese parent of TikTok, to avoid being forced to sell its US subsidiary.

“A central part of TikTok’s argument is that it provides a forum for other people to speak, and the law requiring it to sell or be banned infringes on the free speech of those users,” said McGill.

“But the court’s holding here would appear to foreclose that argument by holding that the impact on the users is entirely irrelevant to an analysis of whether a law affecting the company is constitutional.”

Santa Clara University law professor Eric Goldman told The Register that the Supreme Court’s guidance means that most, if not all, of the Florida and Texas social media laws are likely to be disallowed.

The majority emphatically rejected the notion that states can dictate and override private content moderation

“While the decision today doesn’t definitively resolve the future of the Florida and Texas laws, a majority bloc of justices – led by Justice Kagan – articulated some important principles that represent a major victory for the First Amendment freedoms of social media services,” said Goldman.

“Most importantly, the majority emphatically rejected the notion that states can dictate and override private content moderation decisions, treating internet services as more like newspaper publishers than telephony or other common carriers.”

Goldman however observes that the Supreme Court’s decision to kick the can down the road will allow more states to advance constitutionally suspect laws and burden the court system unnecessarily.

“States around the country are flooding the zone with new internet censorship laws, many of which are predicated on the same misguided and censorial assumptions that informed the Texas and Florida laws,” he said.

“Today’s decision guarantees lots of additional legal work for litigators on all sides and raises the bar (and the costs) to defend basic First Amendment principles that states are widely and casually disregarding.” ®

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Thomas Claburn