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SCOTUS Punts On Constitutionality Of State Laws Constraining Big Tech Censorship

‘So we vacate the decisions below and remand these cases,’ Justice Elena Kagan wrote.


The U.S. Supreme Court unanimously declined to rule on the merits of state laws curbing Big Tech’s regulation of online speech, instead sending the case back to lower courts for further review.

“The parties have not briefed the critical issues here, and the record is underdeveloped,” Associate Justice Elena Kagan wrote for the court. “So we vacate the decisions below and remand these cases. That will enable the lower courts to consider the scope of the laws’ applications, and weigh the unconstitutional as against the constitutional ones.”

Chief Justice John Roberts and Associate Justices Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett joined Kagan’s opinion in full, while Associate Justice Ketanji Brown Jackson concurred in part and the judgement. Associate Justices Clarence Thomas and Samuel Alito filed separate opinions concurring in the judgement, the latter of which was joined by Thomas and Associate Justice Neil Gorsuch.

Barrett also authored a separate concurring opinion.

Known as Moody v. NetChoice, LLC, the case centered on laws passed by Florida and Texas in 2021 that sought to regulate social media companies’ ability to censor content it deemed unfavorable. This prompted NetChoice LLC and the Computer & Communications Industry Association — “trade associations whose members include Facebook and YouTube” — to file “facial First Amendment challenges against the laws.”

District courts overseeing the respective challenges issued preliminary injunctions barring the statutes from taking effect. Appeals of the rulings produced differing judgements from two appellate courts.

The 11th Circuit Court upheld the lower court’s injunction against Florida’s law, ruling that the Sunshine State’s “restrictions on content moderation trigger First Amendment scrutiny under this Court’s cases protecting ‘editorial discretion,’ and concluding that the “content-moderation provisions are unlikely to survive heightened scrutiny.” Meanwhile, the 5th Circuit Court reversed the lower court’s injunction on Texas’ law, ruling that “the platforms’ content moderation activities are ‘not speech’ at all, and so do not implicate the First Amendment.”

In declining to rule on the merits of the laws, the Supreme Court asserted that neither circuit court “conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms.”

“As explained below, the question in such a case is whether a law’s unconstitutional applications are substantial compared to its constitutional ones,” Kagan wrote. “To make that judgment, a court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry.”

In his concurrence, Thomas agreed with the high court’s decision to remand the matter back to the lower courts, but disagreed with its choice to “opine on certain applications of those statutes.” He also criticized the court for partaking “in the exact type of analysis that it chastises the Courts of Appeals for performing.”

“Out of the sea of ‘variegated and complex’ functions that platforms perform … the Court plucks out two (Facebook’s News Feed and YouTube’s homepage), and declares that they may be protected by the First Amendment,” Thomas wrote. “The Court does so on a record that it itself describes as ‘incomplete’ and ‘underdeveloped’ … and by sidestepping several pressing factual and legal questions … As Justice Alito explains, the Court’s approach is both unwarranted and mistaken.”

Monday’s decision comes days after the Supreme Court allowed Big Tech’s collusion with the federal government to censor speech the latter finds unfavorable. In a 6-3 decision, the court’s majority ruled that plaintiffs lacked standing to bring the suit, tossing two lower court injunctions that prevented federal agencies from coordinating with social media companies and effectively permitting the government’s censorship-industrial complex to remain intact during the 2024 election.

Alito noted in his blistering dissent that the Supreme Court’s failure to stop the Biden administration and Big Tech’s “dangerous” censorship activities could produce alarming consequences for Americans’ First Amendment rights.

“It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so,” Alito wrote. “Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”

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