• by Wendy Davis  @wendyndavis, July 1, 2024

The Supreme Court on Monday declined to definitively rule on First Amendment challenges to sweeping Florida and Texas laws that restrict tech companies' ability to moderate content.

Instead, the court vacated rulings that had been issued in 2022 by the 11th Circuit (which blocked the bulk of Florida's law as unconstitutional) and the 5th Circuit (which upheld the Texas law) and returned both cases to the lower court judges so they could more completely evaluate the state laws.

Justice Elena Kagan, who authored the majority opinion, essentially said the cases reached the Supreme Court prematurely because lower court judges blocked the statutes without establishing their full scope.

But Kagan also emphasized in the opinion that social media platforms have First Amendment rights to wield control over content on their platforms.

The First Amendment “does not go on leave when social media are involved,” Kagan wrote.

“This Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression -- to 'un-bias' what it thinks biased, rather than to leave such judgments to speakers and their audiences,” she wrote. “That principle works for social-media platforms as it does for others.”

The statutes in Florida and Texas broadly prohibited tech companies from suppressing speech in certain circumstances. In both cases, the measures were championed by Republican lawmakers who claimed that tech companies were disproportionately quashing conservative ideas.

Among other provisions, the Florida law subjects social media companies to fines of $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. (The bill defines deplatforming as suspending for more than 14 days or banning.) It also bans large social media platforms from suppressing posts by journalistic enterprises based on content.

The Texas measure includes provisions prohibiting social media platforms with at least 50 million users from removing or suppressing lawful posts based on viewpoint.

NetChoice and the Computer and Communications Industry Association challenged both laws, arguing that private companies have the right to decide what speech to carry -- including the right to suppress objectionable content, such as posts by anti-vaxxers, or posts advocating racism.

The Interactive Advertising Bureau backed the challenge, arguing that businesses don't want to advertise next to offensive posts.

At oral arguments in February, some judges questioned the scope of the laws -- including whether they could apply to a broader range of services than social media. For instance, some of the judges questioned whether the Florida law would apply to services beyond social networking -- like Gmail or Uber.

U.S. Solicitor General Elizabeth Prelogar, who argued that the laws should be blocked, acknowledged that the Florida's law sweep was unclear.

“We think there's a lot of ambiguity about what the state law requires,” Prelogar said.

Kagan noted those ambiguities in her opinion, writing that the first step in analyzing the laws is to evaluate their scope -- including whether they would apply to direct messaging, reviews on Etsy or payment platforms like Venmo. The next step, she wrote, is to figure out which of the law's applications would violate the First Amendment.

“The parties have not briefed the critical issues here, and the record is underdeveloped,” she wrote, adding that the court was returning both cases to the lower courts so they could “consider the scope of the laws’ applications, and weigh the unconstitutional as against the constitutional ones.”

Even though the ultimate ruling wasn't definitive, digital rights groups that opposed the Texas and Florida laws praised the language in Kagan's opinion.

“I would have preferred to see the court strike down the Florida and Texas laws outright, but the principles that Justice Kagan outlined are a win for free expression,” Kate Ruane, director of the Center for Democracy & Technology's Free Expression Project, said Monday.