SCOTUS orders lower courts to take another look at Texas' and Florida's social media laws, saying neither lower court conducted proper analysis of 1A challenges
The First Amendment was written in the 18th century … The Hill : Morning Report — Is a Trump election interference trial off the table? CCIA : Supreme Court Issues Ruling in CCIA, NetChoice Challenge to Florida, Texas Social Media Laws Stuart Benjamin / Reason : The Supreme Court's Reasoning Prohibits the Deplatforming that the Parties Care About Maria Deutscher / SiliconANGLE : Supreme Court returns Texas and Florida social media laws to lower courts Politico : Justices send Florida, Texas social media laws back to lower courts Knight First Amendment Institute : Knight Institute Comments on Supreme Court Ruling In Cases Involving Florida and Texas Social Media Laws NPR : Supreme Court puts Florida and Texas Social Media Laws on hold Krista Chavez / NetChoice : NetChoice Wins at Supreme Court Over Texas and Florida's Unconstitutional Speech Control Schemes CPI / PYMNTS.com : Supreme Court Orders Review of Social Media Regulation Laws Issie Lapowsky / Fast Company : The Supreme Court just ducked a major decision in its social media ‘censorship’ cases Suswati Basu / ReadWrite : Supreme Court sends social media regulation laws back to lower courts Chris Teale / Route Fifty : Supreme Court sends Florida, Texas ‘censorship’ laws back to lower courts Laura Bratton / Quartz : The Supreme Court won't decide Big Tech's free speech fight with Florida and Texas CNN : State social media laws aimed at protecting conservative users remain blocked, Supreme Court says Ted Johnson / Deadline : Supreme Court Sends Social Media Cases Back To Lower Courts To Consider First Amendment Issues David G. Savage / Los Angeles Times : Supreme Court puts off ruling on whether state social media laws violate the 1st Amendment Aisha Malik / TechCrunch : Supreme Court sends Texas and Florida social media regulation laws back to lower courts Karissa Bell / Engadget : Supreme Court remands social media moderation cases over First Amendment issues Eric Goldman / Technology & Marketing Law Blog : Statement on the Supreme Court's Ruling in Moody v. NetChoice Caroline Anders / Semafor : SCOTUS punts on social media case, bars states from moderating content for now Alison Durkee / Forbes : Supreme Court Throws Out ‘Social Media Censorship’ Cases In Florida And Texas Mark Sherman / Associated Press : The Supreme Court keeps on hold efforts in Texas and Florida to regulate social media platforms Emily Birnbaum / Bloomberg : Supreme Court Sends Social Media Laws Back to Lower Courts Ryan King / New York Post : Supreme Court sends challenge to Florida, Texas laws restricting social media regulation back to lower courts Erik Gruenwedel / Media Play News : U.S. Supreme Court Puts Hold on Texas, Florida Laws Regulating Social Media SCOTUSblog : Announcement of opinions for Monday, July 1 (complete) Threads: Andrew Fong / @fongandrew : This is framed as a hold / punt by SCOTUS, but it's a pretty clear loss for Texas and Florida. The court (and based on the concurrences, there seem to be at least 5 votes here) is pretty clear in saying that if social media companies want to make their algorithmic feeds lean left or right, that's a First Amendment protected right. Andrew Fong / @fongandrew : The decision punts back to the lower courts though because this is a facial challenge — that is, plaintiffs are preemptively challenging the entire law, not a particular application. And neither lower court evaluated all possible applications. … Renee DiResta / @renee.diresta : Not a lawyer but this seems to be saying that content moderation isn't censorship because platforms have 1A rights, too. Also seems to say that labeling is not censorship. Gosh. How could the Twitter Files have gotten this so wrong? NetChoice “A serious misunderstanding of First Amendment precedent and principle...” Katie Harbath / @katieharbath : Still digging in but seems like the common theme across the NetChoice and Trump cases is that defining things like what things a content moderation law applies to or what are official or not official acts is really hard. Given Chevron we should expect judges to have to do that more going forward. Casey Newton / @crumbler : Content moderation is still legal ... for now X: AG Ashley Moody / @agashleymoody : 🚨BREAKING NEWS: SCOTUS Unanimously Sides with Florida in Social Media Case🚨 We are pleased that SCOTUS agreed with Florida and rejected the lower court's flawed reasoning—invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law. Attorney General Ken Paxton / @KenPaxtonTX : This year, I went before SCOTUS to defend our landmark Texas law that forbids social media companies from discriminating on the basis of viewpoint. Big Tech censorship is one of the biggest threats to free public discourse and election integrity. Today, SCOTUS has sent this case back to the lower courts. I will keep fighting for our law that protects Texans' voices. No American should be silenced by Big Tech oligarchs. Tim Wu / @superwuster : The Netchoice case is a loss for the litigators — but I do think the dicta-opinion is way too generous in recognizing a constitutional curation-right in non-human algorithmic decison-making Dr. Mary Anne Franks / @ma_franks : Brilliantly put: “On 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.” Dr. Mary Anne Franks / @ma_franks : Kagan's majority opinion in #Netchoice is complex, but it is also refreshingly clear about the heart of the #FirstAmendment issue: “a State may not interfere with private actors' speech to advance its own vision of ideological balance.” https://www.supremecourt.gov/ ... Jess Miers / @jess_miers : The Court's like yeah the Internet sucks sometimes but not nearly as much as these laws LMAOOOOOO [image] Jess Miers / @jess_miers : Those states are now, more than ever, prime targets for litigation. The Supreme Court doesn't mince words either — these laws will fail, one way or another. CC: New York and California. [image] Jess Miers / @jess_miers : What does this mean for states that previously (and recently) enacted social media regulations? It means that the taxpayers in those states will be paying heavily for that mistake. Jason Kint / @jason_kint : Super interesting, relevant to the news media bargaining codes fashioned after Australia and Canada which are premised on an imbalance in bargaining power requiring intervention without time to wait on antitrust remedies due to importance of journalism/news to democracy. Matt Stoller / @matthewstoller : A very interesting footnote 10 in the NetChoice Supreme Court decision. The government can regulate platforms when the goal is to limit those in a “monopolistic gatekeeping position” from strangling those who depend on them. [image] Patrick Hedger / @pat_hedger : I think it's a big and underreported problem that powerful state AGs are just straight up lying about how they did at SCOTUS. [image] Nico Perrino / @nicoperrino : The majority opinion in @NetChoice reminds us of three core First Amendment principles: 1) Principles don't vary with new technologies. 2) States can't violate speech rights to achieve desired ideological balance. 3) Content publishers have the right to editorial discretion. Patrick Hedger / @pat_hedger : Key takeaway from the NetChoice cases. Florida and Texas went too far and their social media laws' days are numbered. James Czerniawski / @jamescz19 : I love this line from the #NetChoice case: “The government may not, in supposed pursuit of better expressive valance, alter a private speaker's own editorial choices about the mix of speech it wants to convey.” It is not the government's job to do the balancing act. That's on us. Neil Chilson / @neil_chilson : The Internet survives! [image] Thomas Berry / @thomas_a_berry : Although the Supreme Court's opinion in the NetChoice cases did not reach the merits, this passage from Justice Kagan's majority opinion is hugely important and a victory for the view that both NetChoice and Cato urged. https://www.supremecourt.gov/ ... [image] Steve Vladeck / @steve_vladeck : Justice Kagan has the consolidated ruling in NetChoice, holding for a unanimous-ish(!) Court that *neither* the Fifth Circuit *nor* the Eleventh Circuit applied the right test, and remanding for proper application of the standard for facial relief: https://www.supremecourt.gov/ ... Zephyr Teachout / @zephyrteachout : The Netchoice remand today is a big win for the child social media laws being pushed around the country. Phew. @jeffjarvis : I skipped to the end of the Netchoice decision: [image] Sandeep Vaheesan / @sandeepvaheesan : Concerning line in Moody v. NetChoice for all public regulation of communications networks: Can AT&T as an ISP block certain content and prioritize other content and claim it is engaged in protected “expressive” activity? [image] Daphne Keller / @daphnehk : Alito's NetChoice concurrence is literally (mis)citing the part of Packingham he criticized at the time as “undisciplined dicta[.]” [image] Jameel Jaffer / @jameeljaffer : I was prepared for disaster, but the Netchoice decision is good. It rejects the broadest arguments made by the states and the platforms. It recognizes that platforms are ‘editors’ but dismisses the argument that regulation in this sphere is categorically unconstitutional. /1 Trace Mitchell / @tracethelaw : While SCOTUS did not definitively rule on the constitutionality of the laws at issue, the majority makes clear that platforms do have constitutionally protected editorial rights. That is both correct and an important victory for anyone who cares about the First Amendment! Rob Freund / @robertfreundlaw : Save this snippet from Netchoice for future conversations where people claim platforms are violating the First Amendment by “censoring” them. [image] Ilya Shapiro / @ishapiro : 1. On NetChoice: The five opinions will take a while to digest, but the fact that SCOTUS was able to speak with one voice to send the cases back to lower courts to further consider the 1A issues here signals that justices are taking seriously our brave new social-media world. Robert Winterton / @robpwj : NetChoice, CCIA, and the First Amendment WON at SCOTUS today in the NetChoice cases. The SCOTUS decision holds that social media sites have a constitutional right to decide what content they host. Here's a thread 🧵 highlighting quotes that explicitly defend these First [image] Nora Benavidez / @attorneynora : Supreme Court has vacated the NetChoice cases. A slight sigh of relief for our First Amendment. Government regulation should have no business dictating private speech. Statement from us at @freepress pending. Jess Miers / @jess_miers : SCOTUS attached a massive warning to their remand of the Netchoice cases: Laws that interfere with the editorial discretion of private online services, including their curation decisions, shall face a tremendous First Amendment hurdle. https://www.supremecourt.gov/ ... [image] Anupam Chander / @anupamchander : Justice Kagan's majority opinion in Moody v NetChoice, on quick read, will protect against excessive government speech regulation of internet platforms' editorial decisions made through their algorithms. Consider this extensive list of editorial activity by internet platforms: [image] Ari Cohn / @aricohn : Upshot: SCOTUS vacates and remands the NetChoice cases because of the facial challenge irregularity that came up at oral arguments, but the Court takes the time to explain how it views the First Amendment principles at issue, with a not-at-all-disguised swipe at the 5th Circuit. [image] Jordan Fischer / @jordanonrecord : Another day, another Fifth Circuit benchslap from SCOTUS (from today's Moody v. NetChoice decision). [image] Zephyr Teachout / @zephyrteachout : So Netchoice loses big in three ways 1) They actually lose (Remand) 2) Kagan says that “Texas's asserted interest relates to the suppression of free expression” which is a finding not applicable to most laws 3) Barrett is the swing here and leaves a lot of room Matt Stoller / @matthewstoller : If I'm the CEO of TikTok I'm setting up a bidding process for American buyers because it looks like the court will uphold the law Congress just passed. [image] Matt Stoller / @matthewstoller : Jackson, Thomas, Alito all say there aren't always free speech protections for big tech platforms. Barrett honors Ruth Bader Ginsburg's corporatist legacy: “Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves.” Matt Stoller / @matthewstoller : Court in NetChoice has a weird ruling, saying that NetChoice failed to prove the laws it is challenging on platform censorship are unconstitutional. Then the court adds a lot of (non-binding) commentary on how those laws are unconstitutional. https://www.supremecourt.gov/ ... Mark Joseph Stern / @mjs_dc : The Supreme Court's second decision is NetChoice. Justice Kagan's complicated opinion for the court remands both cases to the appeals courts for the proper analysis of a First Amendment facial challenge, which, she says, they flunked the first time. https://www.supremecourt.gov/ ... Katie Buehler / @bykatiebuehler : BREAKING: A 9-0 Supreme Court punts on constitutionality of FL & TX laws barring social media platforms from removing content/users based on viewpoint, returning it to lower courts. (Moody v. NetChoice/NetChoice v. Paxton, No. 22-277/22-555) #SCOTUS https://www.supremecourt.gov/ ... [image] Staci D Kramer / @sdkstl : >>HOWEVER: Kagan's opinion for the court holds that content moderation IS “expressively activity” and that social media platforms ARE protected by the First Amendment, no matter their size, from state intrusion. That's a major holding.<< Mark Joseph Stern / @mjs_dc : I would deem the NetChoice decision a significant, albeit incomplete, victory for the social platforms, and a loss for Florida and Texas; perhaps the biggest winners are the platforms' lawyers, who get to continue litigating these cases in the lower courts and billing for it. Mark Joseph Stern / @mjs_dc : Kagan says social media platforms engage in protected speech when moderating content posted by third parties, and Texas' alleged interest in interfering with that practice amounts to the “suppression of free expression, and it is not valid” under the First Amendment. [image] Josh Gerstein / @joshgerstein : BREAKING: 2nd opinion from #SCOTUS this AM: Netchoice. TX and FL social media laws. Kagan writes. Newsfeeds and home pages are like newspapers “protected expressive activity.” Other parts of sites maybe not. Remanded to both appeals courts https://www.supremecourt.gov/ ... LinkedIn: Marina V. Bogorad : The Supremes say the way your posts get moderated is protected by the First Amendment, and states cannot tell X/Twitter or Facebook what to keep and what to toss—not without further analysis. … Forums: r/neoliberal : Supreme Court protects the future of content moderation r/politics : US Supreme Court set to decide fate of Texas, Florida social media laws See also Mediagazer
Context & Ripple Effects
The remand follows the Court's earlier decision to take up the Florida and Texas challenges and oral arguments that highlighted tension between state regulation and platforms' own speech rights. Rather than resolving the laws' constitutionality outright, the Court faulted the lower courts' method for assessing broad First Amendment challenges.
The decision matters because it treats moderation and algorithmic curation as expressive editorial choices, while leaving the lower courts to apply that principle to the statutes' particular provisions.
First-order effects
- The Fifth and Eleventh Circuits must reconsider the challenges under the proper facial First Amendment framework; neither Texas nor Florida receives a final validation of its law from this ruling.
- Platforms gain a clearer constitutional premise for contesting compelled hosting or ranking rules: their moderation and curation decisions are protected expression, subject to the states meeting demanding First Amendment scrutiny.
Second-order effects
- States defending content-moderation mandates will need to distinguish permissible disclosure or operational requirements from rules that compel platforms to carry or distribute speech; the litigation focus shifts from broad claims about platform power to specific statutory applications.
- Platform operators can use the ruling in challenges to similar state interventions, but the remand means compliance planning remains unsettled until lower courts assess the provisions anew.
Third-order effects
- If lower courts consistently apply the Court's approach, state efforts to impose ideological neutrality on private content curation will face a higher constitutional barrier, narrowing one route for regulating platform gatekeeping.
- The unresolved line between editorial control and other platform obligations will keep pressure on lawmakers to design rules around conduct or transparency rather than direct control over distribution decisions.
The trend: The case is part of a broader shift toward treating platform moderation and ranking as constitutionally significant editorial functions, even as policymakers seek ways to constrain platform gatekeepers.