Reactions to the Supreme Court’s NetChoice Cases

On Monday, July 1, 2024, the US Supreme Court ruled unanimously to vacate and remand two important cases regarding state laws impacting social media content moderation “because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms.” The cases, Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, revolve around laws in Florida and Texas that would restrict social media companies’ ability to moderate content on their platforms.

Following the decision, the plaintiffs, defendants, civil society groups, advocates, legal experts, and others issued a range of statements. What follows is a selection of public statements in response to the court's decision.

Ken Paxton, Attorney General, Texas

“This year, I went before SCOTUS to defend our landmark Texas law that forbids social media companies from discriminating on the basis of viewpoint. Big Tech censorship is one of the biggest threats to free public discourse and election integrity. Today, SCOTUS has sent this case back to the lower courts. I will keep fighting for our law that protects Texans’ voices. No American should be silenced by Big Tech oligarchs.”

Read the full statement here.

Ashley Moody, Attorney General, Florida

“We are pleased that SCOTUS 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.”

Read the full statement here.

Chris Marchese, Director of the NetChoice Litigation Center

“Today’s ruling from the Supreme Court is a victory for First Amendment rights online. As our cases head back to the lower courts for consideration, the Supreme Court agreed with all our First Amendment arguments. 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.NetChoice will continue to vigorously defend Americans’ rights to free expression online.”

Read the full statement here.

Nora Benavidez, Senior Counsel and Director, Digital Justice and Civil Rights at Free Press

“While Free Press believes that tech companies should bolster their platform-accountability measures across the board, the First Amendment is clear: The government does not have the right to impose rules on how companies like Meta and Google should accomplish this. While today’s decision rests on procedural grounds, Justice Kagan’s comprehensive opinion for the Court explains in very clear terms why the Florida and Texas laws will have a tough time ever passing First Amendment muster. That’s a very good thing. Getting the government involved in this way would have caused far more problems than it would have cured. These laws would have further ratcheted up the amount of hate and disinformation online while undermining both the meaning and the intent of the First Amendment.

“Social-media companies have a crucial role in shaping public attitudes, especially during pivotal election years. Regulations that give state officials control over private companies’ content-moderation decisions run afoul of the First Amendment and risk forcing platforms to keep up lies and other content that violates their terms of service. As we head into one of the most significant elections in recent memory, regulatory schemes to force platforms to keep false and harmful content up are not the answer, especially when those unconstitutional mandates are predicated on penalties that state actors impose for decisions concerning private speech.

“One of the fundamental values underpinning the First Amendment is that our government cannot dictate the terms of public debate. The Florida and Texas laws bolstered state authority to intervene into private speech. The natural byproduct of such a government mandate would be more misinformation, more extremism and more hate online.

“Tech companies’ executives have a track record of negligence when it comes to leaving up harmful content. Today’s ruling should send a message to the likes of Mark Zuckerberg and Elon Musk: Your commitment to platform integrity is protected under the First Amendment. While there could be further court proceedings based on today’s procedural holding, the Court sent a clear signal that unconstitutional efforts to regulate content moderation will face withering scrutiny.”

Read the full statement here.

Nicole Gill, Executive Director and Co-Founder, Accountable Tech

“Social media platforms have a duty to protect their users from hate speech, threats of violence, and blatant disinformation. Responsible content moderation is a crucial part of online safety. Today’s unanimous opinion ensures platforms can enforce their community and safety standards during a critical election year, but make no mistake: this is not an excuse for platforms to continue to shrug off their role in the desecration of democracy and proliferation of a myriad of societal harms.

“These cases are part of a larger agenda by NetChoice and the tech industry to overturn tech regulation policies nationwide in an effort to protect Big Tech’s profit and influence. It is essential that we do not allow this decision to absolve Big Tech companies of their responsibility to protect our kids, defend democracy, and address threats to public safety.”

Read the full statement here.

Jameel Jaffer, Executive Director of the Knight First Amendment Institute

“This is a careful and considered ruling that decisively rejects the broadest arguments made by the states and the social media platforms. 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.”

Read the full statement here.

Meetali Jain, Executive Director of the Tech Justice Law Project

“Given the impact of social media companies on all our lives, both regulation of tech platforms and responsible content moderation policies are crucial to a well-functioning democracy. In remanding these cases back to the lower courts for further development in line with the First Amendment, the Supreme Court recognized the need to strike a delicate balance between competing values. Notably, for the third time this term, the Court slapped back at the Fifth Circuit for its misapplication of facts and law. Whatever the ultimate fate of Texas and Florida’s laws, today’s decision does not categorically foreclose state authority to regulate tech platforms to protect their citizens, particularly when the design of platforms themselves creates online harms to children’s safety, consumer privacy, national security and public health. Social media companies may retain discretion to responsibly moderate content on their platforms, but their business models are not beyond the reach of regulation.”

Read the full statement here.

David Greene, Senior Staff Attorney and Civil Liberties Director, Electronic Frontier Foundation

“The Supreme Court correctly found that social media platforms, like newspapers, bookstores, and art galleries before them, have First Amendment rights to curate and edit the speech of others they deliver to their users, and the government has a very limited role in dictating what social media platforms must and must not publish. Although users remain understandably frustrated with how the large platforms moderate user speech, the best deal for users is when platforms make these decisions instead of the government.”

“Notably, the Court emphasizes another point EFF has consistently made: that the First Amendment right to edit and curate user content does not immunize social media platforms and tech companies more broadly from other forms of regulation not related to editorial policy. As the Court wrote: “Many possible interests relating to social media can meet that test; nothing said here puts regulation of NetChoice’s members off-limits as to a whole array of subjects.” The Court specifically calls out competition law as one avenue to address problems related to market dominance and lack of user choice. Although not mentioned in the Court’s opinion, consumer privacy laws are another available regulatory tool.”

Read the full statement here.

Ben Sperry, Senior Scholar, The International Center for Law & Economics (ICLE)

“The Supreme Court today vindicated the First Amendment in a pair of online speech cases involving challenges brought by NetChoice to state platform-moderation laws enacted in Florida and Texas. While lower courts will need to sort out the constitutionality of these laws, this fundamental truth is clear: the First Amendment does not allow the government to compel private actors like social-media platforms to carry speech. The marketplace of ideas is best protected when private actors are free to participate through setting their own moderation policies without government interference. As we argued in our amicus brief, the social-media companies, not bureaucrats or courts, are best-positioned to balance the speech interests of their users.”

Read the full statement here.

Marc Epstein, Senior Counsel with the Digital Justice Initiative at the Lawyers’ Committee for Civil Rights Under Law

“We’re pleased at the decision today. It means that social media companies can still remove hate and disinformation on their platforms. But it’s not the end of the story. Hate and disinformation are still pervasive on social media. They are often targeted at Black people. And they cause significant harm, including stress, depression, anxiety, and other mental health effects. The harmful effects of hate and disinformation directed at Black people discourage Black people from engaging online. Now that the Court has recognized the platforms’ ability to remove this kind of content, the platforms need to do a better job of doing so. The decision also recognizes that the First Amendment is not an all-purpose shield for harmful actions taken by social media companies. These platforms must comply with regulations that do not implicate speech, just like every other business. Social media companies can still be held accountable for their own discrimination, privacy violations, and other conduct that harms Black people and other people of color.”

Read the full statement here.

Dean Ball, AI Researcher, Mercatus Center at George Mason University

"The Supreme Court declined to issue a judgment in today’s ruling on Florida and Texas’ social media regulations, sending the issues back to their respective appeals courts for further consideration. This is consistent with the Court’s indecision on social media cases during the last two terms. While several Justices articulated different positions on the Constitutionality of policies that regulate social media, fundamentally, the Court’s reaction was one of substantial uncertainty. This is in inherent tension with the Court’s ruling last week in Loper Bright v Raimondo, which overturned Chevron deference and argued that courts are best-positioned to resolve technically complex statutory disputes.

"The Court may be right on the principles—in our system of government, judges are supposed to resolve disputes over the law. But their unwillingness to resolve such disputes over social media—a well-established technology—is troubling given the rise of AI, which may present even thornier legal and Constitutional questions."

Ash Johnson, Senior Policy Manager, The Information Technology and Innovation Foundation (ITIF)

“Free speech rights do not end on social media. The Supreme Court’s decision to remand the cases against Florida and Texas rightly prioritized the First Amendment issues that are at the heart of both cases. In attempting to regulate social media platforms’ editorial decisions, Florida and Texas threaten the free speech rights not just of those platforms but of their users.

The Internet economy has flourished in the United States under a light-touch regime that safeguards the free speech of platforms and users. The result is a plethora of online services, including social media networks, offering different experiences to meet the needs of diverse users.

Florida and Texas’ laws both threaten the stability of the Internet economy by dictating how social media platforms can operate with regards to political speech, one of the most important forms of free speech in a democracy. The Fifth and Eleventh Circuit Courts, in their upcoming review of these laws, should consider these issues when following the Supreme Court’s instruction to review the laws’ First Amendment implications.”

Read the full statement here.

Vera Eidelman, Staff Attorney with the ACLU’s Speech, Privacy, and Technology Project

“Today’s decision is a win for free speech in the digital age. The court’s recognition that the government cannot control social media in an effort to impose its own vision of what online speech should look like is crucial to protecting all of our right to speak our minds and access information on the internet.”

Read the full statement here.

Linda Moore, President and CEO, TechNet

“Today’s Supreme Court decisions are a win for free speech and a healthy internet ecosystem. The court’s ruling that basic First Amendment rights apply to online platforms, just as they do for offline entities, is a win for the American people as well. Removing these protections would have fundamentally changed how we communicate and interact online, created a less safe user experience, endangered lawful online expression, and weakened U.S. innovation.

We are pleased the Supreme Court instructed lower courts to review and analyze these two laws based on long-established First Amendment principles.”

Read the full statement here.

Barbora Bukovska, Senior Director for Law and Policy, ARTICLE 19

“These decisions represent a crucial moment in the global conversation about freedom of expression online. They go to the heart of how states can regulate content moderation practices of major social media platforms. If upheld, the laws would have created an environment for state-controlled and politicised enforcement of content moderation online.

ARTICLE 19 is particularly encouraged that the Supreme Court recognised the need for a more nuanced and comprehensive analysis of how the Florida and Texas laws impact the full range of online activities, not just content moderation practices. The Court’s approach underscores the need for careful consideration of how regulations impact the diverse ecosystem of online platforms and the fundamental right to freedom of expression. This aligns with our view that any regulation of online speech must carefully consider its broad implications for freedom of expression.”

Read the full statement here.

Robert Corn-Revere, Chief Counsel, FIRE

“Today’s ruling makes clear there’s no social media exception to the First Amendment. The government has no business dictating to platforms what opinions they must host. The court rightly rejects the idea that lawmakers have more authority over speech online than they do offline. That’s a big win for free speech and a free internet.”

Read the full statement here.

Jeff Kosseff, Non Resident Senior Fellow, The Future of Free Speech Project

“A majority of the Supreme Court signed onto the view that social media platforms receive the same First Amendement as offline media. Supporters of the Texas and Florida laws have valid concerns about the potential for large companies to have outsized influence over online speech, but the majority recognized that allowing the government to oversee content moderation would only exacerbate these problems. While Monday’s opinion is surely not the final word on the Texas and Florida laws, it is an important statement that the Court will not set different rules for online and offline speech.”

Read the full statement here.

Matt Schruers, President, Computer and Communications Industry Association (CCIA)

“We are encouraged that a majority of the Court has made clear that the government cannot tilt public debate in its favored direction. There is nothing more Orwellian than government attempting to dictate what speech should be carried, whether it is a newspaper or a social media site. Our Founding Fathers understood the importance of the right to speak or not speak without government interference and made this a cornerstone of our democracy when they ratified the First Amendment. We look forward to continuing our advocacy for the First Amendment as these cases return to lower courts in Florida and Texas.”

Read the full statement here.

Jess Miers, Legal Director, Chamber of Progress

“This court plainly recognizes that social media curation – including algorithmic curation – is protected speech. Today’s decision means that the government will have a very high bar to clear in order to abridge the speech rights of online platforms and users. Again and again, the majority in this opinion reaffirms what we already knew: content moderation is protected squarely by the First Amendment. If anything, this ruling squashes the common carrier theory of social media regulation once and for all.”

Read the full statement here.

The article was updated on July 2, 2024, to reflect an amended statement from the Tech Justice Law Project.