Supreme Court Unanimously Returns NetChoice Cases to Lower Courts But With Conflicting Guidance on How They Should Review

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. But, according to the court, the laws are written broadly and cover more than just social media platforms like Facebook and YouTube.

Per the decision, “Analysis and arguments below focused mainly on how the laws applied to the content-moderation practices that giant social-media platforms use on their best-known services to filter, alter, or label their users’ posts, i.e., on how the laws applied to the likes of Facebook’s News Feed and YouTube’s homepage. They did not address the full range of activities the laws cover, and measure the constitutional against the unconstitutional applications.”

As a result, “The proper analysis begins with an assessment of the state laws’ scope.” From there, the Supreme Court tells the Eleventh Circuit and the Fifth Circuit to “decide which of the laws’ applications violate the First Amendment, and to measure them against the rest.”

Related Reading:

• Supreme Court Mulls NetChoice Cases: Reading the Room
• Five Things To Watch For In NetChoice Supreme Court Oral Argument
• Review of Amicus Briefs Filed in NetChoice Cases Before the Supreme Court

The Supreme Court’s ruling was shaped by NetChoice’s strategy to pursue a facial challenge to both laws, where it asked the court to find that both laws were unconstitutional in all applications, a decision scrutinized by the justices during February’s oral argument. Per the Court’s decision, “NetChoice’s decision to litigate these cases as facial challenges comes at a cost. The Court has made facial challenges hard to win.”

Though the Court did not rule on the constitutionality of both laws, the justices offered some guidelines to the lower courts, particularly for the Court of Appeals for the Fifth Circuit, which upheld Texas’s law. In an opinion delivered by Justice Kagan, and joined by Justices Roberts, Sotomayor, Kavanaugh, and Barrett, the Court called out the Fifth Circuit for holding “that the content choices the major platforms make for their main feeds are ‘not speech’ at all, so States may regulate them free of the First Amendment’s restraints.”

Justice Kagan’s opinion contradicts that interpretation wholly, arguing that “the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude.” Moreover, the protection of the First Amendment does not change “just because a compiler includes most items and excludes just a few.” Finally, although both Texas and Florida argued they had a compelling interest in preventing speech from being ‘censored’ by the platforms, the majority opinion argues that “the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas.”

That view, unsurprisingly, was not shared by all of the justices. Though Justice Thomas agreed with the court’s decision to vacate and remand, he pushed back on the majority opinion guidance “on certain applications of [the] statutes.” In a concurring opinion, Thomas urged both lower courts to examine NetChoice claims using the common-carrier doctrine. In a 2021 concurring opinion in Biden v. Knight First Amendment, Thomas argued that “digital platforms are sufficiently akin to common carriers, or places of accommodation to be regulated in this manner.” Viewing social media platforms as common carriers became a central argument for the states and the Fifth Circuit to justify the restrictions on social media platforms' content moderation practices.

Justice Thomas also joined a concurring opinion authored by Justice Alito and joined by Justice Gorsuch, which also agreed to vacate and remand the cases, while offering the lower courts a different interpretation of the Constitutionality of the laws as applied to social media platforms. Alito contradicts the main contention of the majority opinion that compilers, like social media platforms, are protected by the First Amendment. “Because not all compilers express a message of their own, not all compilations are protected by the First Amendment. Instead, the First Amendment protects only those compilations that are 'inherently expressive' in their own right, meaning that they select and present speech created by other persons…”

Now it will be up to the lower courts to decide which interpretation to follow. Given that the Eleventh Circuit Court of Appeals previously blocked the Florida law on grounds that it would “substantially likely” violate social media platforms’ First Amendment rights, it will probably follow the majority’s opinion. The Fifth Circuit’s decision, which upheld the Texas law, will likely follow Justice Thomas, Gorsuch, and Alito’s interpretation. Thus, both cases will most certainly end up back before the courts, requiring the Supreme Court to more definitively be the final word.