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Here’s how the Supreme Court got the big free speech stuff right

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In what some saw as anticlimactic, the Supreme Court last Monday declined to decide whether Texas and Florida laws regulating social media moderation policies violate the First Amendment. But the big news from these consolidated cases was what the court did say.

Justice Elena Kagan’s majority opinion in Moody v. NetChoice (decided with NetChoice v. Paxton), made clear that the First Amendment “does not go on leave when social media are involved.”  

What does that mean? Kagan and a solid majority laid down the basic First Amendment principles that will govern the cases going forward in terms so plain that not even the Fifth Circuit can get it wrong the next time around.

The two cases were part of the political fallout after former President Trump was kicked off Twitter (now X), Facebook and YouTube following the Jan. 6 attack on the U.S. Capitol.  

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The Texas and Florida legislatures in 2021 responded by passing laws to prevent “Big Tech” from using moderation choices to discriminate against conservative politicians and pundits. The Florida law targeted so-called “deplatforming” of political candidates, speech about candidates, or news organizations, while Texas prohibited “viewpoint-based” moderation practices.

NetChoice, an industry trade association, challenged both laws, which promptly were enjoined before they could go into effect. But then things got interesting. 

The 11th Circuit, citing established precedents protecting internet speech, upheld the injunction in Florida. The Fifth Circuit, however, in NetChoice v. Paxton reversed the injunction of the Texas law, reasoning that regulating platforms’ moderation choices did not implicate the First Amendment at all because the companies were being censors.  

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This explanation was surprising, to say the least. It is basic law that the First Amendment limits government power to restrict speech, not content selection by private publishers.  

As FIRE put it in our amicus brief to the Supreme Court, the Fifth Circuit’s “error is so stark, so obvious, and so flamboyantly wrong,” that Judge Leslie Southwick, who dissented, “was able to sum up the problem in eight words: ‘The majority’s perceived censorship is my perceived editing.’”

photo of Supreme Court building

The Supreme Court majority agreed, describing the Fifth Circuit’s theory as “a serious misunderstanding of First Amendment precedent and principle.” Kagan wrote “it is no job for government to decide what counts as the right balance of private expression – to ‘un-bias what it thinks is biased, rather than to leave such judgments to speakers and their audiences.”

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True, the court left an ultimate decision on the constitutionality of the Florida and Texas laws for another day.  The lower courts will have to conduct a searching examination of the two statutes to determine how far they reach and to what extent they regulate protected editorial activity. 

But the majority opinion left little doubt about what governing principles will control the outcome.

Supreme Court members

The court made clear, as it has in the past, that “whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles” of the First Amendment “do not vary.” 

Social media may be relatively new and novel media of communication, but “the main problem in this case – and the inquiry it calls for – is not new.” Bottom line, the First Amendment bars the government from “tilting public debate in a preferred direction.”

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It was necessary to provide such direct guidance, Kagan explained, “to ensure that the facial analysis proceeds on the right path in the courts below” and that the “need is especially stark for the Fifth Circuit.”  Otherwise, if she said nothing about the Fifth Circuit’s fundamental errors, “the court would presumably repeat them when it next considers NetChoice’s challenge.”

And just to nail the door shut, Kagan concluded “that the Fifth Circuit, if it stayed the course, would get wrong at least one significant input to the facial analysis,” that moderation decisions about Facebook’s News Feed and YouTube’s homepage are “editorial judgments” and “protected expressive activity.”

Supreme Court guidance to lower courts is rarely more direct – or pointed – than that. Time will tell if the lower courts take the hint.

Without a doubt, large social media companies can exert great influence and make bad moderation choices. But as Kagan’s opinion reminded us, “[h]owever imperfect the private marketplace of ideas, here was a worse proposal – the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others.”

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Yes, “private censorship” can be bad, but as the court observed, “[o]n the spectrum of 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.”

FIRE’s amicus brief paraphrased the late humorist P.J. O’Rourke to say that giving state legislatures power over social media moderation decisions “is like giving whiskey and car keys to teenage boys.” Last week’s Supreme Court decision promises to take away the keys and lock the bottles in the liquor cabinet.

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