Yahoo Finance Social media giants get temporary Supreme Court win but no final clarity on free speech rights
The Supreme Court handed a temporary win to social media giants like Facebook (META), YouTube (GOOG, GOOGL), and TikTok as it sent a set of free speech cases back to the lower courts.
But the unanimous decision left unsettled the question of whether states can strip dominant social media companies of their power to unilaterally block users or remove posts that express certain viewpoints.
The set of cases before the high court challenged state laws in Florida and Texas limiting the capacity of such platforms to moderate posts.
Both laws were passed due to concerns following the Jan. 6, 2021, US Capitol attack that the platforms had restricted or removed posts expressing conservative viewpoints.
The Supreme Court decided Monday to send these Florida and Texas cases back to lower courts, explaining that the Eleventh Circuit and the Fifth Circuit failed to properly analyze "facial" challenges to state laws.
Such challenges attack an entire law as unconstitutional, as opposed to challenges that allege a law, or part of a law's application to a particular party, is unconstitutional.
"Today’s ruling from the Supreme Court is a victory for First Amendment rights online," said Chris Marchese, director of the NetChoice Litigation Center.
NetChoice, a technology organization that advocates for Big Tech companies including Yahoo Finance, opposed both laws and was involved as a plaintiff in the Texas dispute and a defendant in the Florida case.
It argued that, like newspapers or other editorial decision-makers, social media companies are entitled to their own First Amendment right to decide which statements by third parties are permitted on their platforms.
The Florida law blocked companies from removing content posted by "journalistic enterprises," and from deplatforming qualified political candidates.
It also prohibited deprioritizing candidate-related posts and said platforms must notify and explain to users when they censor their speech. The law further required the platforms to apply their content moderation rules consistently to all users.
The Texas law said major social media platforms must not remove posts that express a "viewpoint." And like the Florida law, it said platforms must individually explain each decision to moderate a user's post.
An appellate court upheld the Florida law, and a separate appellate court blocked Texas's legislation.
Social media companies have long pushed back against regulation that interferes with their editorial control over content by invoking Section 230 of the Communications Decency Act. The act immunizes the platforms from liability for content contained in user posts.
"The irony of both the Texas and Florida laws is that they invoke journalistic liberty to force social media platforms to host speech they don’t like," Cliff Davidson, a partner at Snell & Wilmer, told Yahoo Finance before the high court's decision was rendered.
The laws, he said, could be difficult for social media companies to interpret and follow because their application to carry content from "journalistic enterprises" depends on the amount of content an enterprise creates or the number of its paid subscribers or users.
But "it’s unclear how a social media platform is supposed to determine what content these laws protect day to day" because the laws are silent on how those figures are determined, how long the minimums must be met, and whether the reported number of users must be verified.
The court also issued a decision in another case this term that challenged the editorial power of social media platforms.
The case — Murthy v. Missouri — questioned whether federal government officials and agencies infringed on First Amendment rights by encouraging social media platforms to remove their posts during the COVID-19 pandemic and 2020 presidential election.
The officials encouraged platforms to remove posts that the administration deemed misinformation and to combat false health-related information.
In a 6-3 ruling, the court held that the plaintiff states and social media users in the case lacked standing — the legal right to challenge the administration in federal court.
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.
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