A couple of years ago, Florida and Texas passed “social media censorship” laws. The laws were not subtle–the bill titles literally told the world that the legislatures were censoring social media. From a drafting standpoint, the laws were a mess. They packed dozens of undertheorized policy ideas into poorly drafted omnibus bills that never represented a serious attempt at policy-making.
On appeal to the Supreme Court, the laws baffled the justices due to their sprawling nature, confusing provisions, and misguided policy assumptions. The Supreme Court unanimously agreed to send the cases back to the Fifth and Eleventh Circuits for more careful review of the plaintiffs’ facial challenges to the laws.
While the decision today doesn’t definitively resolve the future of the Florida and Texas laws, a majority bloc of justices–led by Justice Kagan–articulated some important principles that represent a major victory for the First Amendment freedoms of social media services. Most importantly, the majority emphatically rejected the notion that states can dictate and override private content moderation decisions, treating Internet services as more like newspaper publishers than telephony or other common carriers. As Justice Kagan wrote, “a State may not interfere with private actors’ speech to advance its own vision of ideological balance…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.”
Given the majority opinion’s guidance, it is likely that large portions, if not all, of the Florida and Texas social media censorship laws will ultimately fail.
The opinion represents a major rebuke to the Texas and Florida legislatures for their lazy embrace of censorship and to the Fifth Circuit for its review of the Texas law. It feels like the Supreme Court is reversing the Fifth Circuit opinions on a daily basis, a reflection of how the Fifth Circuit has strayed from good judicial practices.
Unfortunately, the Supreme Court’s delay in definitively resolving this case will leave a vacuum for reviewing many other pending and imminent constitutional challenges to state laws. States around the country are flooding the zone with new Internet censorship laws, many of which are predicated on the same misguided and censorial assumptions that informed the Texas and Florida laws. Challenges to those laws will fill the courts’ dockets, and some of those cases will reach the Supreme Court before it finally resolves the Florida and Texas laws. Plus, the Supreme Court made it clear that facial First Amendment challenges are hard to establish, increasing the likelihood that more lawsuits will be needed, and on narrower grounds that won’t lead to broad precedent. Today’s decision guarantees lots of additional legal work for litigators on all sides and raises the bar (and the costs) to defend basic First Amendment principles that states are widely and casually disregarding.
I will have a more complete analysis of the cases soon.