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Justices voice concern with social media regulations but refer cases back to lower courts

Updated: Jul 2

The U.S. Supreme Court essentially punted this morning on a closely watched case concerning state regulations on social media platforms. Though the justices signaled serious concerns about possible violations of the First Amendment, they referred the controversy back to lower courts to answer questions further before the high court issues a final decision.

As reported by the Wall Street Journal:

“The Supreme Court on Monday sidestepped a ruling on the validity of laws in Texas and Florida that sought to regulate how tech platforms moderate content, sending legal challenges backed by social-media companies back to lower courts for more arguments . . . The Supreme Court, however, stepped in with a brief written order that kept the Texas law on hold while the litigation continued.

Last year Mountain States Policy Center joined an amicus in these cases encouraging the justices to uphold important First Amendment protections. The amicus that MSPC joined warned:

“Though well-intentioned, the state laws here flout these principles and will turn the internet into what has aptly been called a ‘splinternet’ of 50 state speech codes—balkanizing the country, confusing users, overburdening websites, and impoverishing public debate. Amici file this brief to explain why such state laws are both unconstitutional and unneeded.”

There were several concurring opinions but no dissents in today’s ruling. Writing for the majority Justice Kagan said:

“The problem for this Court is that it cannot undertake the needed inquiries. ‘[W]e are a court of review, not of first view.’ Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Neither the Eleventh Circuit nor the Fifth Circuit performed the facial analysis in the way just described. And even were we to ignore the value of other courts going first, we could not proceed very far. The parties have not briefed the critical issues here, and the record is underdeveloped. So we vacate the decisions below and remand these cases. That will enable the lower courts to consider the scope of the laws’ applications, and weigh the unconstitutional as against the constitutional ones . . .

In a better world, there would be fewer inequities in speech opportunities; and the government can take many steps to bring that world closer. But it cannot prohibit speech to improve or better balance the speech market. On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana. That is why we have said in so many contexts that the government may not ‘restrict the speech of some elements of our society in order to enhance the relative voice of others.’

. . . To give government that power is to enable it to control the expression of ideas, promoting those it favors and suppressing those it does not. And that is what the First Amendment protects all of us from. We accordingly vacate the judgments of the Courts of Appeals for the Fifth and Eleventh Circuits and remand the cases for further proceedings consistent with this opinion.”

NetChoice said this about today’s ruling:

“As our cases head back to the lower courts for consideration, the Supreme Court agreed with all our First Amendment arguments. Free speech is a cornerstone of our republic. As we prepare to celebrate the 248th anniversary of American independence this week, we are gratified to see the Supreme Court acknowledge the Constitution’s unparalleled protections for free speech, including the world’s most important communications tool, the internet.”

Though we wish the issue had been resolved today, we agree with NetChoice that it is encouraging the U.S. Supreme Court instructed the lower courts to view these cases through the lens of strong First Amendment protections.

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