Tech Law Fight Sent Back to Appeals Court

TALLAHASSEE — The U.S. Supreme Court on Monday vacated conflicting rulings in challenges to Florida and Texas laws aimed at placing restrictions on social-media platforms, directing appeals courts to reconsider the decisions.

Monday’s highly anticipated ruling, issued on the last day of the court’s term, did not resolve the constitutionality of the laws but kept in place an injunction that has blocked the Florida law.

The laws sought to limit the ability of social-media platforms such as Facebook and YouTube to moderate content on their sites. Tech-industry groups NetChoice and the Computer & Communications Industry Association filed challenges, alleging that the laws violated constitutional limits on government restrictions of speech.

In Monday’s main opinion, Justice Elena Kagan said that “to the extent that social-media platforms create expressive products, they receive the First Amendment’s protection.”

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“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 wrote in an opinion joined fully by Chief Justice John Roberts and Justices Sonya Sotomayor, Brett Kavanaugh and Amy Coney Barrett and partly by Justice Ketanji Brown Jackson.

But, Kagan added, appellate courts failed to properly consider the “facial nature” of the challenges to the laws, a critical element in deciding whether they met constitutional muster.

“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,” she wrote.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Barrett and Jackson wrote or joined concurring opinions.

Gov. Ron DeSantis and the Republican-controlled Legislature passed the law after Facebook and Twitter, now known as X, blocked former President Donald Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.

The 11th U.S. Circuit Court of Appeals kept in place most of a preliminary injunction that U.S. District Judge Robert Hinkle issued to block the Florida law in 2021.The 5th U.S. Circuit Court of Appeals, however, rejected a challenge to Texas’ similar law.

The tech groups praised Monday’s decision as a victory.

The Supreme Court “agreed with all our First Amendment arguments,” NetChoice Litigation Center director Chris Marchese said in a statement.

“Free speech is a cornerstone of our republic. As we prepare to celebrate the 248th anniversary of American independence this week, we are gratified to see the Supreme Court acknowledge the Constitution’s unparalleled protections for free speech, including the world’s most important communications tool, the internet,” Marchese added.

But Florida Attorney General Ashley Moody also called the ruling a win — for the state.

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“We are pleased that SCOTUS (the Supreme Court) agreed with Florida and rejected the lower court’s flawed reasoning — invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law,” Moody said on X.

The court’s ruling “decisively rejects the broadest arguments” made by the states and the social-media platforms, Jameel Jaffer, executive director of the Knight First Amendment Institute, said in a statement. The institute submitted a friend-of-the-court brief in the Supreme Court cases.

“It properly recognizes that platforms are ‘editors’ under the First Amendment, but it also dismisses, for good reasons, the argument that regulation in this sphere is categorically unconstitutional. The social media companies asked for a sweeping ruling that would have placed their business models beyond the reach of regulation. The states asked for a ruling that would have given them immense power to manipulate and control public discourse online. The court was entirely right to reject these requests, both of which would have done real harm to our democracy,” Jaffer said.

As examples of the disputed issues in the Florida case, part of the law would prevent platforms from banning political candidates from their sites and require companies to publish — and apply consistently — standards about issues such as banning users or blocking their content. The law seeks to regulate social media platforms that have annual gross revenue of over $100 million or more than 100 million monthly active users. Companies could face steep penalties for violating restrictions in the law.

In issuing the preliminary injunction in 2021, Hinkle described the law as “riddled with imprecision and ambiguity.”

Although the Supreme Court did not rule on the First Amendment issue, the majority opinion and concurring opinions provided a glimpse into the justices’ takes on social-media restrictions.

“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,” Kagan wrote in the main opinion.

The Florida and Texas cases “present a complex clash between two novel state laws and the alleged First Amendment rights of several of the largest social media platforms,” Jackson wrote in an opinion that concurred in part with the main opinion.

“Some things are already clear. Not every potential action taken by a social media company will qualify as expression protected under the First Amendment. But not every hypothesized regulation of such a company’s operations will necessarily be able to withstand the force of the First Amendment’s protection either. Beyond those broadest of statements, it is difficult to say much more at this time,” she wrote.

Thomas said he agreed the cases should be sent back to the lower courts.

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“I cannot agree, however, with the court’s decision to opine on certain applications of those statutes. The court’s discussion is unnecessary to its holding,” he wrote in a concurring opinion.

In a separate concurring opinion, Alito chastised the majority for weighing in on the restrictions’ merits.

“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,” Alito wrote in an opinion joined by Thomas and Justice Neil Gorsuch.

Matt Schruers, president of the Computer Communications & Industry Association, predicted the tech companies would again prevail.

“The court’s opinion is unmistakably clear – that all of the propositions that we were citing are sound, that the precedents we were pointing to apply. And from that, it seems inescapable that the outcome that we called for is apparent, but the lower courts need to revise their analyses based on this guidance,” Schruers said.


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