Supreme Court Comes Out Strong for Online Free Speech

Yesterday was a good day for free speech.

On July 1, the Supreme Court returned NetChoice v. Paxton and Moody v. NetChoice to their respective lower courts for further consideration. The ruling called for more wholistic inquiries regarding the effects of the Texas and Florida statutes in question.

Notwithstanding the Court’s refusal to rule on the cases’ merits, the majority opinion contains much that will help NetChoice as it continues to litigate. Writing for her colleagues, Justice Elena Kagan made clear that First Amendment precedent securing the right to editorial discretion does protect social-media platforms’ content-moderation policies. Her incisive reasoning indicated clearly that the statutes in question, which prescribe permissible modes of content moderation, violate platforms’ right to choose what third-party user-generated content to publish and promote and what to remove and hide.

The majority opinion savaged the Fifth Circuit’s ruling (which upheld Texas’s law), instead endorsing the 11th Circuit’s far superior approach. Justice Kagan relied on the proper precedents (Miami Herald v. Tornillo and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.) and discarded the inapt ones (PruneYard v. Robins and Rumsfeld v. FAIR). “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,” she wrote. Quite the opposite. “When the platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices,” the majority opinion reads.

Moreover, Kagan argued, “the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds.”  Further on in her opinion, she reinforced the point, writing, “On the spectrum 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.” Whatever complaints conservatives level at social media, they must seek remedies through private, not state, action.

In one sense, the majority did little besides clarify that offline First Amendment jurisprudence applies, mutatis mutandis, to online businesses. “[W]hile much about social media is new,” Kagan noted, “the essence of that project is something this Court has seen before.” However, as Alito’s adversarial opinion evidences, this task has proven difficult for many, including some brilliant and principled judges. Had the Court declined to correct the Fifth Circuit’s errors — or had it endorsed them — it would have done great harm to free speech and property rights in the digital world.

Having encountered a chute, the NetChoice cases will continue to climb the judicial ladder. But today, the Supreme Court declared emphatically that — at least with respect to social media’s content-moderation practices — the First Amendment’s protections constrain ideologically blinkered state lawmakers. And that is good for everybody’s speech.