9-0 Ruling on Internet Free Speech Cases Came with Criticism

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On Monday, the Supreme Court issued its decisions in NetChoice v. Paxton (Texas) and Moody v. NetChoice (Florida). These decisions address how we engage on the Internet and what social media platforms can and cannot do to suppress users’ speech.

In a 9-0 ruling that largely chastises the lower courts for employing the wrong analysis and failing to do their jobs, Justice Elena Kagan wrote:

Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge. The 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. As explained below, 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.

In sum, there is much work to do below on both these cases, given the facial nature of NetChoice’s challenges. But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.

“So it’s speech for the purposes of the First Amendment, your speech, your editorial control, but when we get to Section 230, your submission is that that isn’t your speech?


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