The Supreme Court appeared lost in a massive case about free speech online

The Supreme Court appeared lost in a massive case about free speech online

Supreme Court Justice Neil Gorsuch and Chief Justice John Roberts on the steps of the Supreme Court on June 15, 2017, in Washington, DC.  | Win McNamee/Getty Images

The justices look likely to reinstate Texas and Florida laws that seize control of much of the internet — but not for long.

The Supreme Court appears inclined to reinstate Texas and Florida laws seizing control of much of the internet — both of which are currently blocked by court orders — because those laws are incompetently drafted.

If that outcome sounds confusing, don’t worry, it is. Monday’s oral arguments in Moody v. NetChoice and NetChoice v. Paxton were messy and often difficult to follow. And the ultimate outcome in these cases is likely to turn on distinctions that even the lawyers found it difficult to keep track of.

Before we dig into any of that, however, it’s useful to understand what these cases are actually about. Texas and Florida’s Republican legislatures both passed similar, but not identical, laws that would effectively seize control of content moderation at the “big three” social media platforms: Facebook, YouTube, and Twitter (the platform that Elon Musk insists on calling “X”).

These laws’ advocates are quite proud of the fact that they were enacted to prevent moderation of conservative speech online, even if the big three platforms deem some of that content (such as insurrectionist or anti-vax content) offensive or harmful. Florida Gov. Ron DeSantis (R) said his state’s law exists to fight supposedly “biased silencing” of “our freedom of speech as conservatives … by the ‘big tech’ oligarchs in Silicon Valley.” Texas Gov. Greg Abbott (R) said his state’s law targets a “dangerous movement by social media companies to silence conservative viewpoints and ideas.”

At least five justices — Chief Justice John Roberts, plus Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett — all seemed to agree that the First Amendment does not permit this kind of government takeover of social media moderation. There is a long line of Supreme Court cases, stretching back at least as far as Miami Herald v. Tornillo (1974), holding that the government may not force newspapers and the like to publish content they do not wish to publish. And these five justices appeared to believe that cases like Tornillo should also apply to social media companies.

Indeed, some of them seemed so appalled by Florida and Texas’s attempt to control speech online that, at times, they seemed to mock the lawyers defending those states’ laws. As Roberts asked Henry Whitaker, Florida’s solicitor general, “is there any aspect of social media that you think is protected by the First Amendment?”

But here’s the rub: The plaintiff challenging these laws, an industry group that represents online companies, brought what is known as a “facial” challenge to the Texas and Florida laws. That means that they seek a court order declaring that both laws essentially must be wiped from the books and cannot ever be applied to anyone — as opposed to a more mild, “as-applied” challenge, which would only prevent the law from being applied to certain parties under certain circumstances.

Ordinarily, a plaintiff bringing a facial challenge “must establish that no set of circumstances exists under which the Act would be valid” (although the rules are somewhat more plaintiff-friendly in First Amendment cases). And, while a majority of the Court appeared to agree Texas and Florida’s attempt to control YouTube or Twitter’s content moderation is unconstitutional, the two states’ laws are so broad that they may also impose obligations on other companies, such as Uber, Etsy, or Gmail, that are not unconstitutional.

And so the Supreme Court appears likely to reinstate the Texas and Florida laws. This is not because the Court thinks they are constitutional, and not because the Court thinks that they are constitutional with respect to the three companies that Texas and Florida actually wanted to regulate. But the ham-handedly drafted laws at issue in the NetChoice cases sweep so broadly that they may have some ancillary effects that are permitted by the First Amendment.

That’s probably the right outcome under existing law, but good Lord, it’s an unsatisfying one. This litigation has been ongoing for a very long time, and the Texas law already reached the Supreme Court once in 2022, when a majority of the Court voted to temporarily block it. A decision reinstating the laws because they are not vulnerable to a facial challenge would start that process all over again. And it would create at least some risk that, should the personnel of the Court change while this case is being relitigated, that these clearly unconstitutional laws could actually be upheld.

What a mess.

The case is likely to turn on two very technical distinctions

The Court appears likely to rely on the distinction between facial and as-applied challenges to reinstate the two state laws, at least temporarily. The Court’s decision also appears likely to turn on a difference between how the First Amendment governs different kinds of media companies.

Historically, the law drew a distinction between two kinds of communications providers. Providers like the Post Office or a telephone company, which make no effort to control the content of anything said by their customers, fell into one category. And the government ordinarily has fairly broad authority to make sure that these companies do not discriminate among their users.

The other category includes magazines, newspapers, and other companies that produce curated content. The Tornillo decision held that a news outlet’s “choice of material to go into a newspaper” is subject only to the paper’s “editorial control and judgment,” and that “it has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press.”

Social media exists in somewhat of a gray area between a telephone company and a magazine. Like a phone company, social media platforms ordinarily allow nearly anyone to use their service and to say what they want to say using that service. But, like a magazine, they do exclude some content they fear will turn off other users or discourage advertisers from buying ads on their site.

That said, there is a very strong argument that social media is enough like a magazine to prevent the Florida and Texas laws from taking effect — both of which seek to prohibit social media sites from pulling down content or banning users because of the viewpoint expressed by that user. (Texas’s law explicitly bans “viewpoint” discrimination by the big three social media companies. Florida’s law is more ambiguous, but appears to do the same.)

Again, the purpose of these laws, as DeSantis and Abbott have both said, is to elevate conservative voices who were perceived by Republicans as being unfairly censored online. But, as Kavanaugh pointed out at oral argument, the Supreme Court has long treated laws with skepticism when they seek to “enhance the relative voice” of a group that the government wishes to elevate.

Yet, while most of the Court appeared to agree that the government cannot take control of social media moderation simply because it wants more insurrectionists or anti-vaxxers to have their tweets prominently featured, a big problem arose as the justices started examining the broad scope of these laws.

The Florida law, in particular, is written broadly enough that it may also prohibit services like Gmail from moderating what users put in their emails (setting aside the question of whether Gmail has actually ever done such a thing). And an email provider, unlike a social media provider, closely resembles a telephone company or the Post Office. Unlike a newspaper or a magazine, it does not curate content. So it cannot claim the protection of Tornillo.

Indeed, sorting out when the Texas and Florida laws are constitutional and when they are not may be even more complicated than distinguishing between YouTube and Gmail.

Facebook, for example, offers a direct message service that allows its users to message each other directly as if they were sending them an email. So even though Tornillo prohibits the government from regulating what appears on any individual user’s “news feed” — the algorithmically curated feed of content that’s Facebook’s central product — a law prohibiting Facebook from engaging in “viewpoint discrimination” in its users’ direct messages would probably be constitutional.

Worse, there may be other services provided by these companies that the justices aren’t even aware of — and thus they have no way of knowing whether those services are protected by the First Amendment or not. As Justice Ketanji Brown Jackson put it, “we’re not clear exactly how these platforms work.”

And so the Court will probably be forced to send the case back down to lower courts to sort out these uncertainties.

The only winner in the NetChoice cases is likely to be NetChoice’s lawyers

If the Supreme Court does send the case back down to the lower court, that’s great news for lawyers charging NetChoice an hourly rate. It’s pretty terrible news for everyone else, however.

For starters, such a decision would not be a particularly large victory for Texas and Florida. Again, a majority of the Court seemed to agree that the core function of the law — a government takeover of social media moderation — is unconstitutional. To the extent that the law has constitutional applications, they seem to involve curing problems that don’t actually exist, such as Gmail censoring individual emails.

If the Court allows the laws to take effect, moreover, it’s not clear that the social media companies can comply with them — and complying with them would make their products vastly worse. Paul Clement, NetChoice’s lawyer, suggested at one point that the big three companies may simply prevent anyone in Texas or Florida from using their services altogether (although there is some doubt over whether Texas’s law allows them to pull out of the state). Alternatively, he suggested that they might have to engage in mass censorship.

As Clement pointed out at one point, a ban on “viewpoint discrimination” online means that, if a platform wants to host “suicide prevention” content, it must also host “suicide promotion” content. If it publishes content that portrays Jewish people in a favorable light, it must also host antisemitic content. Rather than turning their platforms over to pro-suicide Nazis, Clement suggested that the major platforms would simply prohibit all discussion whatsoever of suicide or Jewishness.

Indeed, several of the justices appeared so bothered by the implications of allowing these laws to take full effect, even temporarily, that they spent much of the argument casting about for ways to prevent that from happening. Barrett, for example, floated the possibility that the Court could write an opinion which states explicitly that many of the law’s applications are unconstitutional, before sending the case back down to the lower court to do the hard work of identifying when the law can stand and when it must fall.

Whatever happens, it’s likely to be messy. And, if Monday’s oral argument is any indication, no one who doesn’t get paid by the hour to represent NetChoice in court is likely to be happy with the outcome.

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