Industry & Advocacy News

Supreme Court Finds That Internet Platforms Have Free Speech Rights Over Content Decisions

Free Speech

July 19, 2024

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In a significant decision, on July 1, 2024, the U.S. Supreme Court held that social media platforms have First Amendment rights. It ruled on two similar cases, Moody v. Netchoice and Netchoice v. Paxton, constitutional challenges to 2021 laws enacted in Texas and Florida, respectively, that aimed to regulate how major internet platforms manage and filter content.

The Florida and Texas laws both restricted the platforms’ ability to remove or deprioritize certain content and required detailed explanations for any content moderation decisions. The Florida statute expressly stated that “a social media platform may not willfully deplatform a candidate for office” and barred it from censoring or deplatforming a “journalistic enterprise” based on the content of its publication or broadcast. The Texas law barred social media platforms from “censoring” a user, their expression, or their ability to receive the expression of others based upon the viewpoints expressed.

Trade associations representing the affected platforms sued, arguing that the laws violated their First Amendment rights to make editorial decisions. The cases moved through lower courts, with conflicting rulings from the Eleventh and Fifth Circuits. The Eleventh Circuit upheld a preliminary injunction of the Florida law, viewing the platforms’ content moderation as protected speech, while the Fifth Circuit reversed the lower court’s preliminary injunction saying that content moderation wasn’t “speech” and that, in any case, the state of Texas could still regulate it based on its interest in “protecting a diversity of ideas.” This conflict led to the Supreme Court’s agreeing to hear to case to resolve the disagreement between the circuits.

The Court held that social media platforms, as private parties, have First Amendment rights, separate from their users. They are free to moderate users’ content and to determine what content is shown in their users’ feeds and what is amplified or blocked. It did not go so far as to fully invalidate the Texas and Florida laws, however, but sent the cases back down to the lower courts to take a closer look at certain aspects of these laws and determine whether parts of the laws could be retained using its First Amendment analysis as guidance. One key point that the Court wanted the appellate courts to explore is whether these regulations might affect a broader range of websites and apps, not just the well-known social media giants like Facebook.

In the majority decision written by Justice Kagan, the Court provided crucial direction to the courts about the free speech rights of internet platforms and the very limited ability of the government to regulate their speech.  As argued in our amicus curiae (or “friend of the court”) brief submitted with several other organizations, the Court held that social media platforms have a constitutional right to decide what content appears on their sites. It stated, “To the extent that social media platforms create expressive products, they receive the First Amendment’s protection.”

The majority opinion recognized the similarity between the curation social media platforms regularly perform and that of traditional publishers:

“Traditional publishers and editors also select and shape other parties’ expression into their own curated speech products. And we have repeatedly held that laws curtailing their editorial choices must meet the First Amendment’s requirements. The principle does not change because the curated compilation has gone from the physical to the virtual world.”

The Supreme Court specifically held that that the Fifth Circuit “was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression.” It found that the Fifth Circuit erred when it claimed that Texas’s rules about how platforms handle user posts don’t interfere with free expression. The Court also made a strong statement about state power, saying that states can’t meddle with private companies’ speech “to advance its own vision of ideological balance.”

This decision is important because even though the Texas and Florida laws at issue target digital platforms, a decision validating the laws would have opened the way for states to also limit the ability of traditional publishers to choose what to publish. As stated in our brief, “upholding Texas and Florida’s intrusion on editorial autonomy would undermine the rights of publishers of all kinds.”

The Authors Guild will continue to monitor the cases at the Circuit court level and will weigh in via additional amicus briefs where appropriate.