The US Supreme Court has declined to make a definitive ruling on the constitutionality of Florida and Texas laws that limit social media platforms’ content moderation, opting instead to send the issue back to the lower courts. The Court’s guidance, however, strongly hints that today’s social media communications—and the platforms shaping them—should receive full First Amendment protections, as covered by Bloomberg Law here.
Justices concluded unanimously to vacate prior decisions from the US Court of Appeals for the Eleventh Circuit and the Fifth Circuit, reflecting conflicting rulings on similar laws in Florida and Texas. While the Eleventh Circuit blocked the Florida law, which was challenged by industry trade groups including Alphabet Inc. and Meta Platforms Inc., the Fifth Circuit upheld the Texas law.
Writing for the Court, Justice Elena Kagan noted that the lower courts applied the wrong analysis in these cases. She emphasized the distinction between laws that are unconstitutional on their face and those that are only unconstitutional as applied in specific circumstances. Justice Kagan suggested that while the laws might be unconstitutional when applied to major social media platforms like YouTube or Meta, they could still be constitutional in different contexts, such as for non-social media platforms.
Despite the Court’s decision to remand the cases, Justice Kagan warned that the laws’ application to social media platforms is “unlikely to withstand First Amendment scrutiny.” She underscored that it is not the government’s role to determine what counts as balanced expression, as detailed in the Court’s Moody v. NetChoice opinion.
The concurring opinions of Justices Amy Coney Barrett, Ketanji Brown Jackson, and Clarence Thomas each highlighted potential issues with facial challenges to laws, indicating a preference for ‘as-applied’ challenges that address specific contexts and platforms. Justice Samuel Alito’s separate concurrence provided more details about the Florida and Texas laws and expressed some divergence from the majority’s broader approach.
This decision reignites the debate about the role of social media platforms as either private editorial entities, akin to newspapers with First Amendment rights, or “common carriers” obliged to serve all consumers equally. The litigation will now continue in the lower courts, with both states’ laws remaining blocked in the interim.
The full ramifications of the Supreme Court’s guidance will likely not be seen until the lower courts reexamine these laws under the refined framework suggested by the justices. For a detailed analysis, see Bloomberg Law’s coverage.