Social Media Prevails in New Supreme Court Precedent 
Allonn E. Levy

The U.S. Supreme Court handed social media and other Internet content providers a win on July 1. On the last day of its term, the High Court handed down one of its most widely anticipated rulings in the consolidated case of NetChoice v. Paxton and Moody v. NetChoice. The two NetChoice Circuit Court decisions had staked out widely divergent views on the government’s ability to regulate social media platforms. While the ruling technically reversed both lower court cases, a broad majority of justices endorsed the view that social media companies enjoy broad First Amendment rights to control the moderation of their platforms.

This latest opinion stems from two similar state statutory schemes, one from Florida and one from Texas, that sought to limit the ability of large social media platforms to restrict, moderate, curate, or block certain content on their social media platforms, including de-platforming certain publishers of information. Both states were immediately sued by a number of industry groups, including NetChoice, and the respective trial courts blocked enforcement of the statutes pending trial. But on appeal, the Fifth and Eleventh Circuits reached very different conclusions regarding those injunctions.

The Fifth Circuit rejected the argument that social media platforms engage in editorial discretion similar to traditional media. That Circuit Court found that social media moderation activities are “not speech” and that these platforms function more as common carriers, which can be subject to regulation to ensure they provide nondiscriminatory access to their services. For this and other reasons, the Fifth Circuit reversed the Texas trial court’s injunction. However, before the Texas law could go into effect, the U.S. Supreme Court issued an interim order staying the Fifth Circuit’s decision, effectively restoring the trial court’s injunction blocking enforcement while the Supreme Court considered the case.

At around the same time, the Eleventh Circuit issued its ruling affirming the Florida trial court’s injunction barring enforcement of Florida’s similar statutory scheme. Like the Fifth Circuit case, the Supreme Court granted review as to the Eleventh Circuit’s decision to resolve the conflict between Circuits. The High Court then consolidated the cases. The much anticipated decision was issued on the last day of the Supreme Court’s term.

The 9-0 NetChoice decision reverses both cases and sends them back to the two circuits for further decisions. The Court reversed because both cases presented “facial” challenges to the statutes—a challenge that alleges a statute is unconstitutional in all settings, as to all scenarios. Courts have long disfavored this type of challenge due to its breadth. All the justices agreed that the parties had not adequately laid out all of the potential ways in which the challenged statutes could be employed, thus, more work is needed before a facial challenge could be properly analyzed. That is the pure holding of the case, and three off the nine justices (Alito, Thomas, and Gorsuch) would have preferred to stop there. However, the remaining six justices went on to clarify that the Fifth Circuit’s First Amendment analysis was dramatically out-of-step with established First Amendment laws. (Slip Opn. Maj. Pp.12-29.) It is this portion of the opinion that is more important to court observers.

Critically, the majority opinion in Netchoice makes clear that the First Amendment offers protection when an entity is engaged in compiling and curating the speech of others into an expressive product—precisely what most social media companies do. That protection applies even if the company only excludes a relatively small number of messages, information, or authors. Similarly, the government cannot compel publication of a particular viewpoint by a private person or entity (such as a social media entity) even if the government claims it is doing so in the interest of providing a more balanced marketplace of ideas. (Slip Opn. Maj. Pp.13-19.) In other words, the government cannot put its thumb on the scale even if it thinks that a private speech forum is unfairly excluding a particular viewpoint. The Court noted that this legal reality means that Texas’ effort to justify its regulatory scheme would fail under the “strict scrutiny” often employed in First Amendment Cases or the lower “intermediate scrutiny standard” that sometimes is triggered. Thus, even on remand, or after trial, Texas law almost certainly cannot survive the constitutional challenge. As a concurring opinion stated more plainly: “[T]he Eleventh Circuit’s understanding of the First Amendment’s protection of editorial discretion was generally correct; the Fifth Circuit’s was not.” (Slip Opn., Conc. J. Barrett p.1)

The effect of this ruling is that social media and other crowd-sourced, moderated or curated content systems can breathe easier. They are less likely to face a patchwork of red and blue states seeking to promote their versions of fairness and forcing the platforms to comply. Instead, the systems we have—imperfect as they are—where the platform selects its terms-of-use and consumers who want differing levels or types of moderation self-select the most successful platforms.

While the majority of justices expressly agreed that new technologies do not vary fundamental First Amendment rights, at least one justice offered a note of caution. Justice Barrett’s concurrence noted that certain changes in technology could result in a differing outcome of the analysis. She noted that while algorithmic curation is simply a technological means of implementing the owner’s editorial choices, that may not be so for all technologies. Justice Barrett posed two hypotheticals that could affect the analysis: First, an AI interface that is trained to make independent decisions on what constitutes a particular viewpoint, and second, a hypothetical foreign entity with citizens outside the United States (who presumably do not possess the same rights) exclusively directing the viewpoint based editorial decisions. While the concurrence does not answer these hypothetical questions, social media companies would be wise to heed the warning. While they do enjoy a constitutional right to editorial discretion, care needs to be taken that the discretion is actually present in the platform’s systems.

Allonn E. Levy is an attorney and shareholder with Hopkins & Carley, a member of the firm’s IP Group, and chairperson of the Appellate Practice Group. Mr. Levy acted as counsel for amicus curiae groups appearing before the 11th Circuit U.S. Court of Appeals in the Netchoice v. Moody case. Special thanks to Meesha Reiisieh a clerk with H&C through the Bay Area Minority Clerkship Program, who helped with research used in this article.