When it comes to politically charged issues, the partisan, sharply divided Supreme Court justices rarely agree on anything. But they did agree last month, in Moody v. NetChoice LLC, a case involving the First Amendment rights of internet platforms to edit third-party posts.
The dispute arose when Texas and Florida claimed their citizens’ conservative viewpoints were being censored online by Facebook, Twitter (now X) and other platforms. First Amendment alarms went off.
The two states enacted laws in 2021 curtailing the platforms’ capacity to moderate or edit user content. The laws came shortly after Facebook and Twitter ejected President Donald Trump from their platforms in the wake of the Capitol attack.
It has long been the law that the First Amendment protects “editorial discretion.” The type of content the platforms sifted out included posts supporting Nazi ideology; advocating terrorism; espousing racism, Islamophobia or antisemitism; glorifying rape or other gender-based violence; encouraging teenage suicide; discouraging the use of vaccines; advancing false claims of election fraud; and other forms of disinformation.
When Texas Gov. Greg Abbott (R) signed his state’s measure, he said, “There is a dangerous movement by social media companies to silence conservative viewpoints and ideas.” In Florida, Gov. Ron DeSantis (R) made the dire threat, “If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”
It’s hard to strike the right balance between protecting freedom of speech and controlling harmful speech. Undeniably, however, just as there is a right of freedom of speech, there is a right for online publishers to moderate content.
NetChoice is an internet trade association that brought legal actions in both states, saying the laws broadly violated the First Amendment rights of social media companies. Federal judges in Florida and Texas temporarily blocked the laws from taking effect.
As Texas appealed, the Fifth Circuit Court of Appeals, known for its right-wing leanings, ruled that the platforms’ content-moderation activities did not rise to “speech” that would be protected by the First Amendment. In other words, the platforms didn’t have a case.
Appellate Judge Andrew Oldham, a Trump appointee who wrote the opinion, had learned his conservative ideology at the feet of the master — he was a law clerk for Justice Samuel Alito. He then got his doctorate in right-wing jurisprudence as general counsel to Gov. Abbott himself. Oldham disparaged the “large, well-heeled corporations that have hired an armada of attorneys from some of the best law firms in the world to protect their censorship rights,” as though there’s something wrong with hiring a lawyer.
Judge Kevin Newsome, however, writing for the 11th Circuit Court of Appeals, ruled on the Florida law, declaring that content moderation implicated First Amendment protections for “editorial discretion.” Newsom, also a Trump appointee who had clerked for Justice David Souter, concluded that “‘content-moderation’ decisions constitute protected exercises of editorial judgment.”
With the split in the circuits, the case was obviously destined for the Supreme Court. The justices all agreed that NetChoice’s sweeping claims of unconstitutionality had fallen short and that the two cases should be sent back to the lower courts for further proceedings.
The justices were all over the lot, however, on whether Texas or Florida had the correct approach.
Veteran Supreme Court reporter Joan Biscupic had the inside scoop on what happened. Alito, while deprecating the platforms’ speech interests, emphasized the incompleteness of the record and the need to remand the cases. Joining him were fellow conservative Justices Clarence Thomas and Neil Gorsuch and, to some degree, Amy Coney Barrett and Ketanji Brown Jackson.
On the other side of the bench was the liberal Elena Kagan, leaning toward the 11th Circuit’s approach. She wanted to clarify the First Amendment implications when states try to control how platforms filter messages and videos posted by users. She was largely joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Brett Kavanaugh.
Alito began writing the court’s opinion for the dominant five-member bloc, and Kagan for the remaining four.
But when Alito circulated his draft opinion, questioning whether any of the platforms’ content moderation could be considered “expressive” activity under the First Amendment, his majority evaporated. Barrett, a crucial vote, believed some choices regarding content indeed reflected editorial judgments protected by the First Amendment. She became persuaded by Kagan, but she also wanted to draw lines between the varying algorithms platforms use.
“A function qualifies for First Amendment protection only if it is inherently expressive,” Barrett wrote in her concurring opinion, but the protection might not apply to algorithms that automatically present content aimed at users’ preferences.
Kagan appeared to agree. She wrote that the court was not dealing “with feeds whose algorithms respond solely to how users act online — giving them the content they appear to want, without any regard to independent content standards.”
Jackson agreed with much of Kagan’s analysis, cautioning that, “Not every potential action taken by a social media company will qualify as expression protected under the First Amendment.”
Then came Kagan’s cruncher: “When the government interferes with ... editorial choices — say, by ordering the excluded to be included — it alters the content of the compilation,” she wrote. “And in so doing — in overriding a private party’s expressive choices — the government confronts the First Amendment.”
Alito, hanging the flag upside-down, dismissed Kagan’s First Amendment pronouncements as amounting only to “nonbinding dicta,” a lawyer’s term for “rubbish.”
But, despite Alito’s protest, Kagan had a majority concurring with her decision, which, at minimum, offers lower courts a strong indication of how the majority might go in future online challenges.
At the end of the day, Alito had the backing of only two hard-right justices, Thomas and Gorsuch. He had nothing but praise for conservative states restricting social media platforms. And, like his acolyte Judge Oldham, Alito took jabs at the “sophisticated counsel” who challenged the state regulations.
The Supreme Court having ruled so inconclusively, lower court judges now must analyze the laws regulating social media — meaning more high-priced lawyers, and more litigation.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
