Supreme Court sends Florida, Texas ‘censorship’ laws back to lower courts

The U.S. Supreme Court on Monday sent two state laws designed to prevent alleged “censorship” of conservative viewpoints back to appeals courts for more study on their First Amendment implications. The order kept in place injunctions preventing the Florida and Texas laws from taking effect while they are considered.

The justices found in a nearly unanimous opinion that neither the Fifth nor Eleventh Circuit Courts of Appeals “conducted a proper analysis of the facial First Amendment challenges” of the Florida and Texas laws.The justices also said the laws’ scope—whether they affect other social media services, like direct messages, and other online platforms—was still unclear.

Indeed, oral arguments on the laws earlier this year had focused on scope and breadth, and whether they could apply to online marketplaces like Etsy.

“The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social media platforms—as if, say, each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed,” wrote Justice Elena Kagan in her opinion for the court. “But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps.”

Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott, both Republicans, signed their respective legislation within months of each other in 2021. Both argued at the time that the laws were necessary to prevent what DeSantis described as “Big Tech censors” from stifling conservative viewpoints on social media.

The laws were quickly challenged in court on constitutional grounds. The Eleventh Circuit Court of Appeals blocked much of Florida’s law, while the Fifth Circuit Court of Appeals reversed an earlier ruling that had put Texas’ law on hold. A coalition of tech groups, led by NetChoice, then asked the Supreme Court to step in.

In her decision, Kagan said the lower courts had not determined the laws’ “full set of applications,” evaluated which are constitutional and which are not, and compared them. “Neither court performed that necessary inquiry,” she said. “They did not address the full range of activities the laws cover, and measure the constitutional against the unconstitutional applications.”

To remedy that, Kagan urged a proper analysis by lower courts of what the laws’ cover, as they appear to apply beyond Facebook’s News Feed.

Despite the two states’ arguments to the contrary and in a win for the companies, Kagan wrote that social media platforms’ content moderation is free speech and protected under the First Amendment. She said that Texas’ efforts to interfere with content moderation amounts to the "suppression of free expression, and it is not valid" under the First Amendment.

“Texas has thus far justified the law as necessary to balance the mix of speech on Facebook’s News Feed and similar platforms; and the record reflects that Texas officials passed it because they thought those feeds skewed against politically conservative voices,” Kagan wrote. “But 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.”

This is the last of the cases on social media before the Supreme Court, which has issues three rulings in recent months, all with implications for state and local leaders. In March, justices clarified that officials are allowed to block a constituent on their personal social media account or delete their comments as long as they are not acting on behalf of the state.

And last week, the court found that two states lacked standing in their efforts to prevent governments from asking social media companies to remove misinformation, a decision that could have big implications for November’s election.

In a statement after the decision on the Florida and Texas laws, NetChoice criticized the two states’ “bungled, unconstitutional laws” and said remanding them back to lower courts for more study represents a win for the freedom of expression.

“Today’s ruling from the Supreme Court is a victory for First Amendment rights online,” Chris Marchese, director of the NetChoice Litigation Center, said in a statement. “[Free] speech is a cornerstone of our republic. As we prepare to celebrate the 248th anniversary of American independence this week, we are gratified to see the Supreme Court acknowledge the Constitution’s unparalleled protections for free speech, including the world’s most important communications tool, the internet.”

Other observers praised the court for its finding. Ben Sperry, a senior scholar at the nonprofit International Center for Law and Economics, said in a statement it “vindicated the First Amendment” and that “the First Amendment does not allow the government to compel private actors like social media platforms to carry speech.”

“This decision does not implicate states’ long-standing authority to protect their citizens from harm, particularly when platforms’ own design choices create that harm,” Tech Justice Law Project Executive Director Meetali Jain said in a statement. “Governments have an important role protecting citizens from online harm, particularly children’s safety, national security, and public health. At the same time, social media companies remain obligated to responsibly moderate content and prioritize safety over profits.”