NEW: SCOTUS punts Texas social media content regulation case back to lower courts, says 'proper anaylsis' of 1A challenge not 'conducted'

The Supreme Court on Monday returned a decision in two linked cases, Moody v NetChoice and NetChoice v Paxton, regarding social media content moderation laws passed in Texas and Florida in 2021. The court ruled 9-0 to send the cases back down to lower courts. 

"The judgments are vacated, and the cases are remanded, because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms," the ruling's summary stated. 

"The reason Texas is regulating the content moderation policies that the major platforms use for their feeds is to change the speech that will be displayed there. Texas does not like the way those platforms are selecting and moderating content, and wants them to create a different expressive product, communicating different values and priorities. But under the First Amendment, that is a preference Texas may not impose," the ruling, written by Justice Elena Kagan, stated. 

Kagan wrote that the lower "courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms—as if, say, each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed. But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment." 

"The question in such a case is whether a law’s unconstitutional applications are substantial compared to its constitutional ones. 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," Kagan later added. 

"Our unanimous agreement regarding NetChoice’s failure to show that a sufficient number of its members engage in constitutionally protected expression prevents us from accepting NetChoice’s argument regarding these provisions. In the lower courts, NetChoice did not even try to show how these disclosure provisions chill each platform’s speech. Instead, NetChoice merely identified one subset of one platform’s content that would be affected by these laws: billions of nonconforming comments that YouTube removes each year," Justice Samuel Alito wrote in a concurring opinion. 

Florida’s law prohibits social media platforms from deplatforming political candidates, stating, "A social media platform may not willfully deplatform a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate." 

"A social media platform must provide each user a method by which the user may be identified as a qualified candidate and which provides sufficient information to allow the social media platform to confirm the user’s qualification by reviewing the website of the Division of Elections or the website of the local supervisor of elections," the law added. 

Those found in violation of the law could be fined $250,000 per day for a statewide candidate that was deplatformed, and $25,000 per day for a candidate for another office. 

Texas’ law is broader, relating to "censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages." 

The law stated that "a social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on the viewpoint of the user or another person, the viewpoint represented in the user’s expression or another person’s expression, or a user’s geographic location in this state or any other part of the state." 

During arguments in February, Florida Solicitor General Henry Whitaker said that social media platforms "do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users," and are only "in the business of transmitting their users’ speech." 

Paul Clement, representing the trade groups challenging the laws, argued that "given the vast amount of material on the Internet in general and on these websites in particular, exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers." 

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