Supreme Court protects the future of content moderation

On Monday, the Supreme Court issued its decision in Moody v. NetChoice and NetChoice v. Paxton, two consequential cases about the future of speech on the internet. The court explicitly extended First Amendment protections to how social media platforms organize, curate, and moderate their feeds, drawing a comparison between internet content moderation and “traditional publishers and editors.”

The decision elaborates that the compilation and curation of “others’ speech into an expressive product of its own” is entitled to First Amendment protection and that “the government cannot get its way just by asserting an interest in better balancing the marketplace of ideas.” 

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. Appeals courts in each state came to different conclusions about whether the statutes could be upheld, setting up the Supreme Court to make the final call.

The Supreme Court vacated both of the appeals court decisions, ruling that neither court adequately analyzed “the facial First Amendment challenges” to the laws — that is, whether the social media content moderation laws in Florida and Texas would always be unconstitutional in all applications. The court sent the cases back down to the lower courts to reconsider.

Under the new Supreme Court decision, content moderation is generally protected by the First Amendment. “When the platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices,” Justice Elena Kagan wrote in the majority opinion. “And because that is true, they receive First Amendment protection.”

None of the justices dissented, but there were several concurring opinions. 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 but wrote a concurrence. Justices Barrett, Clarence Thomas, and Samuel Alito also wrote concurring opinions.

The majority seemed particularly critical of the Fifth Circuit’s evaluation in favor of Texas’ social media law, HB20, which seeks to protect online speech from discrimination on the basis of viewpoint. “Contrary to what the Fifth Circuit thought, the current record indicates that the Texas law does regulate speech when applied in the way the parties focused on below — when applied, that is, to prevent Facebook (or YouTube) from using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts in its News Feed (or homepage),” Kagan wrote for the majority. “The law then prevents exactly the kind of editorial judgments this Court has previously held to receive First Amendment protection.” Kagan added that the Texas law “is unlikely to withstand First Amendment scrutiny” in that specific application.

Even though the justices declined to rule on the specific merits of the cases, they said it was still “necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions” to make sure the lower courts are put on the right path of analysis. The majority was especially eager to correct the Fifth Circuit’s First Amendment analysis that led it to uphold Texas’ law, though they provided the caveat that their explanation does not address other applications of the law that weren’t initially considered. “The Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression,” Kagan wrote. “And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds.”

The court was also critical of the Texas legislature’s reasoning for passing the law. “The record reflects that Texas officials passed it because they thought those feeds skewed against politically conservative voices,” the majority opinion says. “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. That principle works for social-media platforms as it does for others.”

The majority offered three main takeaways from a series of relevant Supreme Court precedents that came up throughout the cases. First, that the First Amendment protects entities engaged in “expressive activity, including compiling and curating others’ speech” from including messages they’d rather not. Second, that protection doesn’t change “just because a compiler includes most items and excludes just a few.” And third, the government’s argument that its actions would improve the marketplace of ideas is not an adequate justification. “However imperfect the private marketplace of ideas, here was a worse proposal — the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others,” the majority opinion says.

Kagan wrote that the appeals court decisions were being vacated “for reasons separate from the First Amendment merits.” Instead of looking broadly at how the laws applied to multiple companies and multiple products, the lower courts had — according to SCOTUS — focused too narrowly on “the curated feeds offered by the largest and most paradigmatic social-media platforms.” Instead of making a proper analysis into a facial challenge, the appeals courts treated the cases as though each was “an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed.”

SCOTUS said the lower courts did not do enough work for it to review the cases on the merits. “Maybe the parties treated the content-moderation choices reflected in Facebook’s News Feed and YouTube’s homepage as the laws’ heartland applications because they are the principal things regulated, and should have just that weight in the facial analysis,” Kagan wrote. “Or maybe not: Maybe the parties’ focus had all to do with litigation strategy, and there is a sphere of other applications — and constitutional ones — that would prevent the laws’ facial invalidation.”

In summarizing earlier Supreme Court opinions about whether cable operators could be compelled to give some of their channels to local broadcasters, the court said that “a private party’s collection of third-party content into a single speech product … is itself expressive, and intrusion into that activity must be specially justified under the First Amendment.” That could easily apply to social media companies that compile third-party content from many users across the internet.

The justices heard oral arguments in the two cases in February. At the time, several justices prodded counsel about how the laws would impact tech companies that did not seem top of mind when they were authored, including Uber, Etsy, and Venmo.

Alito wrote a concurring opinion, joined by Justices Neil Gorsuch and Thomas, in which he claimed that the judgment, which he also joined in, was “narrow” and confined to a finding that NetChoice failed to make the case that the laws were facially unconstitutional. He also said that the rest of the majority opinion (which five justices joined, plus a sixth having joined in part) was “nonbinding dicta.” Dicta is a part of a legal opinion that can be cited as being persuasive but is not considered binding precedent.

Alito’s concurrence also objects to the blanket characterization of content moderation as an expressive activity, saying that “algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know” and notes that “many of the biggest platforms are beginning to use AI algorithms to help them moderate content.” Alito questioned whether decisions made by AI could be expressive enough to warrant First Amendment protection.

Barrett, who joined the majority’s opinion, also wrote a separate concurrence that mentioned the application of the First Amendment to artificial intelligence.

Barrett wrote that the use of AI might have different implications for whether a court should assess the output as the result of a human’s expressive choices. She said that algorithms programmed to remove or prioritize certain content can be taken as simply implementing a human’s expressive decisions — even if that algorithm is programmed to identify and remove posts promoting a certain political candidate or position on an issue. But, she wrote, the analysis might differ if a platform owner asks an AI trained on a large language model to determine what is hateful content to be removed.

“Technology may attenuate the connection between content-moderation actions (e.g., removing posts) and human beings’ constitutionally protected right to ‘decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence,’” Barrett wrote, citing Turner Broadcasting System, Inc. v. FCC. 

Barrett’s concurrence also noted that foreign ownership of a platform could alter the analysis — something that is at the center of TikTok’s challenge of a new law that would force it to be divested from Chinese parent company ByteDance or face a ban. That case is awaiting oral arguments before the DC Circuit Court, which will need to weigh supposed First Amendment harms against the alleged national security risks lawmakers feared when they passed the bill. Barrett wrote that while corporations have First Amendment rights, “foreign persons and corporations located abroad do not.”