Thomas A. Berry
Three years ago, Texas passed a law declaring that large social media services are “common carriers” subject to onerous regulations dictating what speech they must disseminate. The law prohibits services from removing, demonetizing, or blocking a user or a piece of content based on the viewpoint expressed. Services found to violate this requirement face liability for each piece of content they remove.
The law was soon challenged by NetChoice and CCIA, two internet trade associations whose members operate a variety of websites covered by the law. Although a federal district court held that the Texas law violated the First Amendment, a panel of the Court of Appeals for the Fifth Circuit reversed that decision by a 2–1 vote. The panel held that the law does not inflict a First Amendment injury because the websites “are free to say whatever they want to distance themselves from the speech they host,” and thus would not be falsely identified as endorsing the speech they are forced to disseminate.
Meanwhile, Florida passed a similar law around the same time as Texas, which was also challenged by NetChoice and CCIA. In that case, the Court of Appeals for the Eleventh Circuit struck down key portions of the law as violating the First Amendment rights of the websites.
Today, the Supreme Court issued a single opinion for the two cases jointly, and its decision is a victory for the free speech rights of online platforms.
Although the court did not resolve the cases due to the need for more factfinding on the full scope of the laws, the high court completely rejected the Fifth Circuit’s misguided holding that social media platforms have no First Amendment right to control the content of their feeds. As the court put it, “the editorial judgments influencing the content of those feeds are, contrary to the Fifth Circuit’s view, protected expressive activity.”
As Justice Elena Kagan explained, writing for a majority of the court, social media platforms have the same First Amendment rights as newspapers, magazines, and others who compile and present speech. Social media platforms “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.” As the court summed up, the principle that the First Amendment protects editorial freedom “does not change because the curated compilation has gone from the physical to the virtual world.”
Two points are particularly important in the Supreme Court’s opinion. First, the court rejected the theory proffered by Florida and Texas (and accepted by the Fifth Circuit) that the government has an interest in regulating the balance of speech on a private platform. The court explained that it “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.”
As the court explained, this principle holds true no matter how biased a speech marketplace may be, because the “cure” of governmental regulation will be worse than the disease. “However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others,” wrote Kagan. Put simply, “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.”
Second, the court agreed with the key point that the Cato Institute made in its amicus brief supporting NetChoice, that “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.” The court explained that its decisions have “never hinged a compiler’s First Amendment protection on the risk of misattribution.” Instead, the court clarified that the relevant question is whether the “host of the third‐party speech was … itself engaged in expression.” This holding will go a long way toward ending lower courts’ expansion of the so‐called PruneYard doctrine, which the Fifth Circuit and other courts have wrongly relied on when forcing private entities to host speech.
These cases will now go back to the Fifth and Eleventh Circuits for further factfinding because the laws were challenged “facially.” As the court explained, the lower courts will have to determine what effect these laws have on other websites besides classic social media feeds. The courts will then have to weigh the legitimate applications of the laws (if there are any) against the unconstitutional applications to decide if they should be struck down in full.
While there remains uncertainty about the ultimate outcome of these facial challenges, today’s guidance from the Supreme Court ensures that the free speech rights of private platforms will endure into the digital age.