Supreme Court Ruling Underscores Importance of Free Speech Online

WASHINGTON — The Supreme Court today sent two cases challenging laws regulating online platforms back to the lower courts after justices ruled unanimously that the lower courts hadn't conducted a proper analysis of the First Amendment challenges. The Texas and Florida laws at the center of these lawsuits give the government power to regulate how large social media companies like Facebook and YouTube curate content posted on their sites. In addition, the court made clear that government regulation of how popular social media platforms curate their feeds violates the First Amendment.

“Today’s decision is a win for free speech in the digital age,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “The court's recognition that the government cannot control social media in an effort to impose its own vision of what online speech should look like is crucial to protecting all of our right to speak our minds and access information on the internet.”

The order in Moody v. NetChoice, LLC and NetChoice v. Paxton sent the cases back to the 11th and Fifth Circuits, respectively, to assess the full scope of the laws and to determine whether the laws’ unconstitutional applications outweigh any constitutional ones. To ensure that that analysis proceeds correctly below, particularly in the Fifth Circuit, the court explained that the laws’ restrictions on social media platforms’ selection, ordering, and labeling of posts interfere with protected expression.

The American Civil Liberties Union, ACLU of Texas, and ACLU of Florida earlier this year joined a friend-of-the-court brief led by the Reporters Committee for Freedom of the Press (RCFP) urging the Supreme Court to block the two laws. The ACLU and its partners argued that, under the guise of “prohibiting censorship,” these laws would have replaced the private entities’ editorial voice with preferences dictated by the government. The Florida law sought to prohibit social media companies from banning political candidates, or limiting the distribution or prioritization of posts by or about them. It also attempted to prohibit taking any action to limit distribution of posts by “journalistic enterprises.” The Texas law would have barred larger social media platforms from blocking, removing, or demonetizing content based on the users’ views.

The court also expressed skepticism of the states’ argument that they wanted to regulate platforms to achieve “balance” or ideological neutrality in online discourse, writing: “States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. But the way the First Amendment achieves that goal is by preventing the government from ‘tilt[ing] public debate in a preferred direction.’” It also reiterated that the government generally cannot compel private actors to host or promote speech they would prefer to exclude, even if the goal is to increase viewpoint diversity.

As we explained in our brief, Texas and Florida’s desire to have private speakers distribute more of any viewpoint is not a permissible basis for infringing on platform’s First Amendment rights. On the very largest platforms, free expression values are best served if companies choose to preserve as much political speech as possible, including the speech of public figures. But regardless of what platforms ought to permit as a matter of corporate policy, the government can’t constitutionally mandate what they ultimately choose.

In these cases, the Supreme Court explained that its established precedent for protecting editorial discretion clearly applies to online platforms. The court correctly recognized that online content curation should receive at least as much First Amendment protection as print newspapers, parades, and utility bills do. And it makes clear that social media platforms, in combining multifarious voices, exercise their First Amendment rights while also creating the space for the free expression of their users.

Today’s ruling could also impact how lawmakers consider future attempts at regulating online speech and platforms, such as the Kids Online Safety Act and efforts to repeal or amend Section 230 of the Communications Decency Act.