Supreme Court defers on state online content moderation laws

Industry groups, free-speech advocates and the Biden administration argued that the laws violate the First Amendment rights of social media companies, who should not be forced to host speech that they do not want to or be forced to explain their moderation decisions.

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Separate from the basic outcome, Kagan wrote for a six-justice majority criticizing the 5th Circuit decision that upheld the Texas law and stating that social media content moderation is free speech protected by the First Amendment to the Constitution.

“Deciding on the third-party speech that will be included in or excluded from a compilation — and then organizing and presenting the included items — is expressive activity of its own,” Kagan write.

Justice Amy Coney Barrett wrote separately, largely agreeing with the majority, but also raising concerns that technology, including algorithm-based content moderation and artificial intelligence may affect the constitutionality of internet regulation.

Barrett wrote that challenging the laws broadly “likely forces a court to bite off more than it can chew” and said that social media companies may be better served challenging the laws’ application piecemeal.

“While the governing constitutional principles are straightforward, applying them in one fell swoop to the entire social-media universe is not,” Barrett wrote.

Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, criticized the court’s majority’s “broad ambition” that shot down the 5th Circuit’s approach to the social media laws and raised concerns about the power of social media companies.

“Social-media platforms are diverse, and each may be unique in potentially significant ways,” Alito said, writing that the court should not have made such broad statements about the free-speech protections of content moderation.

Alito wrote that the justices should give “serious treatment” to the idea that social media platforms are common carriers that could be regulated like phone companies, and forced to carry all messages that meet general terms.

The laws have some differences, which came up during oral arguments, such as how the Florida law includes up to $100,000 in damages for violations but the Texas law does not.

In a separate case this term, the justices tossed an effort by Republican-led states and social media users to limit communications between the Biden administration and social media companies over alleged censorship of conservative views online.