Justices send Florida, Texas social media laws back to lower courts

The Supreme Court threw two state laws attempting to regulate social-media companies back to lower courts Monday, saying the First Amendment protects tech platforms from government interference in their news feeds — while leaving open the possibility that parts of the laws might survive.

The cases — Moody v. NetChoice and NetChoice v. Paxton — stem from laws in Florida and Texas that seek to prevent social media platforms such as Facebook and X from removing content and blocking political candidates based on their viewpoints. The laws were passed in the wake of several platforms banning Donald Trump after Jan. 6, 2021, for violating their policies on inciting violence.

Tech lobbying groups NetChoice and the Computer and Communications Information Association sued, saying the laws violate platforms' constitutional rights to make editorial choices about what content to allow or ban. The 11th U.S. Circuit Court of Appeals largely upheld an injunction against Florida’s law, while the Supreme Court put the Texas law on hold after the 5th U.S. Circuit Court of Appeals struck down a lower court injunction.

The tech lobby had argued that the Texas and Florida laws should be wholly rejected on First Amendment grounds. The justices declined to rule with finality on the substantive constitutional questions at play. Instead, in sending the cases back, they said that neither the 5th nor the 11th circuit courts had properly analyzed the full scope of First Amendment questions that the cases raised.

Both laws are blocked from going into effect as proceedings continue.

"Today, we vacate both decisions for reasons separate from the First Amendment merits,” Justice Elena Kagan wrote in an opinion joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett.

Nevertheless, the five justices still chose to weigh in on the Texas and Florida laws’ constitutionality when applied to the firms’ choices about content appearing on Facebook’s News Feed and YouTube’s homepage. The court’s majority said that both state laws violate the First Amendment by attempting to enforce ideological balance in that sort of content, by effectively seeking to replace the tech platforms’ editorial discretion with the government’s.

“On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana,” Kagan wrote.

The ruling was a complex one, technically a unanimous judgment overturning the lower court decisions, but with multiple concurring opinions that evinced significant disagreement among the justices.

Four other justices agreed with sending the case back to the lower courts, but took issue with asking those courts to rule on the laws’ broader constitutionality.

“The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional,” Justice Samuel Alito wrote. “Everything else in the opinion of the Court is nonbinding dicta.”

Other justices, including Clarence Thomas and Ketanji Brown Jackson, said their colleagues should not necessarily have weighed in on the constitutionality of either law as applied to Facebook’s News Feed or YouTube’s homepage — not even in an attempt to guide the lower courts.

“Faced with difficult constitutional issues arising in new contexts on undeveloped records, this Court should strive to avoid deciding more than is necessary,” Jackson wrote.

The tech groups who brought the cases applauded the ruling, and appeared confident in their chances in the lower courts. "We look forward to continuing our fight for the First Amendment and against the Florida and Texas social media laws," CCIA president Matthew Schruers wrote on X . Similarly, NetChoice called it a “victory” for the First Amendment .

Republican Texas Attorney General Ken Paxton defended his state’s law in a post on X , writing, “I will keep fighting for our law that protects Texans’ voices. No American should be silenced by Big Tech oligarchs.”

In Florida, Republican Attorney General Ashley Moody praised the Supreme Court for vacating the 11th Circuit ruling that blocked her state’s law. She, too, pledged to continue defending her state’s law in a post on X .

While the high court’s opinion was procedural in nature, it delved into First Amendment case law, which tech legal expert Matt Wood at the media and democracy nonprofit Free Press said could indicate that states will struggle to prove their laws are constitutional.

The states “got a pretty clear signal that they face a really tough road on any kind of First Amendment ground because this opinion went out of its way, quite literally, to talk about the history of First Amendment jurisprudence here, and why these laws run afoul of it,” Wood said.