Supreme Court Declines to Rule on Tech Platforms’ Free Speech Rights

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The Supreme Court on Monday avoided a definitive resolution of challenges to laws in Florida and Texas that curb the power of social media companies to moderate content, leaving in limbo an effort by Republicans who have promoted such legislation to remedy what they say is a bias against conservatives.

Instead, the justices unanimously agreed to return the cases to lower courts for analysis. In the majority opinion, Justice Elena Kagan wrote that neither lower appeals court had properly analyzed the First Amendment challenges to the Florida and Texas laws.

The laws were prompted in part by the decisions of some platforms to bar President Donald J. Trump after the Jan. 6, 2021, attack on the Capitol.

Supporters of the laws said they were an attempt to combat what they called Silicon Valley censorship. The laws, they added, fostered free speech, giving the public access to all points of view.

Opponents said the laws trampled on the platforms’ own First Amendment rights and would turn them into cesspools of filth, hate and lies.

The two laws differ in their details. Florida’s prevents the platforms from permanently barring candidates for political office in the state, while Texas’ prohibits the platforms from removing any content based on a user’s viewpoint.

“To generalize just a bit,” Judge Andrew S. Oldham of the U.S. Court of Appeals for the Fifth Circuit wrote in a decision upholding the Texas law, the Florida law “prohibits all censorship of some speakers,” while the one from Texas “prohibits some censorship of all speakers” when based on the views they express.

The two trade associations challenging the state laws — NetChoice and the Computer & Communications Industry Association — said that the actions Judge Oldham called censorship were editorial judgments protected by the First Amendment, which generally prohibits government restrictions on speech based on content and viewpoint.

The groups said that social media companies were entitled to the same constitutional protections enjoyed by newspapers, which are generally free to publish without government interference.

Federal appeals courts reached conflicting conclusions in 2022 about the constitutionality of the two laws.

A divided three-judge panel of the Fifth Circuit reversed a lower court’s order blocking the Texas law.

“We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” Judge Oldham wrote for the majority. “The platforms are not newspapers. Their censorship is not speech.”

But a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit largely upheld a preliminary injunction blocking Florida’s law.

“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results or sanction breaches of their community standards, they engage in First Amendment-protected activity.”

The Biden administration supported the social media companies in the two cases, Moody v. NetChoice, No. 22-277, and NetChoice v. Paxton, No. 22-555.

A ruling that tech platforms have no editorial discretion to decide which posts to allow would have exposed users to a greater variety of viewpoints but almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation.

The Supreme Court drew on two key precedents to determine where to draw the constitutional line.

One of them, Pruneyard Shopping Center v. Robins, from 1980, concerned a sprawling private shopping center in Campbell, Calif., whose 21 acres included 65 shops, 10 restaurants and a movie theater. It was open to the public but did not permit, as Justice William H. Rehnquist put it in his opinion for the court, “any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes.”

That policy was challenged by high school students who opposed a U.N. resolution against Zionism and were stopped from handing out pamphlets and seeking signatures for a petition.

Justice Rehnquist, who would be elevated to chief justice in 1986, wrote that state constitutional provisions requiring the shopping center to allow people to engage in expressive activities on its property did not violate the center’s First Amendment rights.

In the second case, Miami Herald v. Tornillo, the Supreme Court in 1974 struck down a Florida law that would have allowed politicians a “right to reply” to newspaper articles critical of them.

The case was brought by Pat L. Tornillo, who was unhappy about colorful editorials in The Miami Herald opposing his candidacy for the Florida House of Representatives. The newspaper said Mr. Tornillo, a labor union official, had engaged in “shakedown statesmanship.”

Chief Justice Warren E. Burger, writing for a unanimous court in striking down the law, said that “the vast accumulations of unreviewable power in the modern media empire” did not permit the government to usurp the role of editors in deciding what ought to be published.



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