NetChoice Rules: Two High Court Decisions on the Future of Internet Content and its Implications for Online Free Speech, and Why the Supreme Court is Frustrated

The Supreme Court ruled in two consequential cases about the future of speech on the internet. The court made a comparison between internet content moderation and traditional publishers and editors when it came to extending the First Amendment protections to social media platforms.

The NetChoice cases concern a pair of similar laws in Florida and Texas that aimed to limit how large social media companies could moderate content on their sites. The legislation took shape after conservative politicians in both states criticized major tech companies for allegedly exerting bias against conservative viewpoints. Tech industry groups NetChoice and the Computer & Communications Industry Association sued to block both laws. The Supreme Court makes the final call on whether the statutes will be upheld after different appeals courts in different states came to different conclusions.

There were many concurring opinions from the justices. Justice Kagan wrote the majority opinion, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett. Justice Ketanji Brown Jackson joined part of the majority opinion. Justices Clarence Thomas and Samuel Alito wrote concurring opinions, and Thomas and Neil Gorsuch joined Alito’s.

In February, the justices heard oral arguments in the two NetChoice cases. At the time, several justices asked how the laws would affect technology companies that were not in the forefront of mind at the time.

The justices unanimously agreed to return the Texas and Florida cases Moody v. NetChoice and NetChoice v. Paxton to lower courts for analysis, but in doing so, it prompted five separate opinions.

Writing for a unanimous court, Justice Elena Kagan wrote: “The parties have not briefed the critical issues here, and the record is underdeveloped,” Kagan wrote.

There was a question before the high court that had the potential to rewrite the rules for online free speech.

The First Amendment isn’t for Everyone, but for the Future: How Social Media Greed Has Changed the Rules of State since the Capitol Reionization

When the Capitol riot took place in January, former President Trump was kicked off of several social media platforms.

Legislators from Florida and Texas passed state laws prohibiting social media companies from banning or limiting political candidates’ access to their platforms.

The laws came despite evidence that, often times, the opposite is true, as right-wing commentators have become especially skilled at using social media as a megaphone.

In February, the justices were debating whether or not a public square that distinguishes them from other private companies is what constituted a modern- day public square.

One of the issues being debated is whether social media companies should be regulated the same as a public utility or a telephone company. For instance, a phone company cannot stop a person from making a call.

And the question before the court was whether the state laws preventing the platforms from doing something like banning Trump again would represent a violation of the First Amendment.

Silicon Valley has argued that without that discretion, including the ability to suspend or block users, social media sites would be glutted with spam, hate speech and other unsavory content.

Under Section 230 of the Communications Decency Act, technology companies are shielded from lawsuits that could arise from content hosted by platforms. Tech companies are allowed to patrol speech on their sites under the law.

Section 230 has become a bipartisan punching bag. Conservatives argue the law gives platforms a free pass to censor right-wing perspectives, whereas liberals say it allows big social media firms to escape accountability for the rise of hate speech, disinformation and other harmful content.

The First Amendment was written in the 18th century with the noble and vitally important goal of ensuring robust political debate and a free press. For much of American history, First Amendment cases involving speech typically concerned political dissenters, religious outcasts, intrepid journalists and others whose ability to express their views was threatened by a powerful and sometimes overbearing state. The First Amendment was a tool that helped the underdog.

Even if one is concerned about the wisdom of the Florida and Texas laws, they should know that the breadth of the court’s reasoning is a wake-up call. The judiciary needs to realize that the First Amendment is spinning out of control. It is threatening the jobs of the state, such as guarding national security and the privacy of its citizens.