The Supreme Court unanimously ruled Monday to send back to the lower courts a pair of cases concerning the constitutionality of laws in Florida and Texas prohibiting social media platforms from censoring users’ content.
Despite this expression of unity, the Justices released five opinions in total. Justice Elena Kagan authored the Court’s majority opinion, and concurring opinions were written by Justices Amy Coney Barrett, Ketanji Brown Jackson, Clarence Thomas, and Samuel Alito.
At the center of these cases are a set of laws approved several years ago in Texas and Florida that restricted social media companies’ discretion in regulating the content that users post on their platforms, as well as required that the companies provide users with detailed content moderation policies.
[RELATED: SCOTUS Considers Constitutionality of Texas and Florida Laws Prohibiting Social Media Censorship]
NetChoice and the Computer & Communications Industry Association — parties in both of these cases, referred to jointly as NetChoice — are trade associations that represent social media companies like Facebook, Twitter, Google (which owns YouTube), and TikTok.
Because this case was brought as a facial challenge — wherein the plaintiff alleges that a statute is always unconstitutional and therefore void — the Justices were tasked with considering a broad range of potential applications and implications.
“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 Justices said.
According to the Justices, the lower courts must now go back and determine the scope of each law and decide if any of these potential applications are in conflict with the First Amendment.
“The courts mainly addressed what the parties had focused on,” the opinion states. “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,” they explained. “In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment.”
“NetChoice chose to litigate these cases as facial challenges, and that decision comes at a cost,” the Court said. “For a host of good reasons, courts usually handle constitutional claims case by case, not en masse.”
“‘Claims of facial invalidity often rest on speculation’ about the law’s coverage and its future enforcement. And ‘facial challenges threaten to short circuit the democratic process’ by preventing duly enacted laws from being implemented in constitutional ways,” the Justices wrote. “This Court has therefore made facial challenges hard to win.”
For First Amendment facial challenges, the Court “has lowered that very high bar” so that a law may be struck down “in its entirety” if the “law’s unconstitutional applications substantially outweigh its constitutional ones.”
“So far in these cases, no one has paid much attention to that issue,” the Justices said.
The Court goes on to explain that the parties — as well as the lower courts — have “treated the laws as having certain heartland applications” and “mostly confined their battle to that terrain.”
“They did not address the full range of activities the laws cover, and measure the constitutional against the unconstitutional applications,” they wrote. “In short, they treated these cases more like as-applied claims than like facial ones.”
“In sum, there is much work to do below on both these cases, given the facial nature of NetChoice’s challenges,” the primary opinion concludes. “But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”
Justice Amy Coney Barrett’s Concurring Opinion
The concurring opinion authored by Justice Barrett argues that one circuit court’s “understanding of the First Amendment’s protection of editorial discretion was generally correct,” while the other’s was not.
Barrett also spoke at greater length about the complications associated with bringing a First Amendment facial challenge, suggesting that “a facial challenge to either of these laws likely forces a court to bite off more than it can chew.”
“An as-applied challenge, by contrast, would enable courts to home in on whether and how specific functions—like feeds versus direct messaging—are inherently expressive and answer platform- and function-specific questions that might bear on the First Amendment analysis,” Barrett concluded. “While the governing constitutional principles are straightforward, applying them in one fell swoop to the entire social-media universe is not.”
Justice Ketanji Brown Jackson’s Concurring Opinion
Justice Jackson’s concurring opinion argues that the Court is not currently able “to adequately evaluate whether the challenged state laws are facially valid” due to the nature of the records and lower court decisions.
“On remand, then, both courts will have to undertake their legal analyses anew,” she wrote. “In doing so, the lower courts must address these cases at the right level of specificity.”
Jackson goes on to further elaborate upon the analysis in which she believes the lower courts must engage to properly address the claims made in this case.
“The question is not whether an entire category of corporations (like social media companies) or a particular entity (like Facebook) is generally engaged in expression. Nor is it enough to say that a given activity (say, content moderation) for a particular service (the News Feed, for example) seems roughly analogous to a more familiar example from our precedent,” Jackson said.
“Even when evaluating a broad facial challenge, courts must make sure they carefully parse not only what entities are regulated, but how the regulated activities actually function before deciding if the activity in question constitutes expression and therefore comes within the First Amendment’s ambit,” she wrote.
In light of this, Jackson argues that the Court “should strive to avoid deciding more than is necessary.”
Justice Clarence Thomas’ Concurring Opinion
Justice Thomas’ concurring opinion expresses disagreement with the Court’s decision to “opine on certain applications of [these] statutes.”
In doing so, Thomas suggests, the Court “engages in the exact type of analysis that it chastises the Courts of Appeals for performing.”
Thomas goes on to explain his belief that federal courts lack the jurisdiction to consider facial challenges in general, as they are only granted the power to weigh in on “cases” and “controversies.”
“Without that limitation, the Judiciary would have an unchecked ability to enjoin duly enacted statutes,” Thomas wrote. “Respecting the case-or-controversy requirement is therefore necessary to ‘preven[t] the Federal Judiciary from intruding upon the powers given to the other branches, and confin[e] the federal courts to a properly judicial role.'”
The remainder of his concurring opinion to outlining the reasoning behind his opposition to the facial challenges, concluding with a declaration that “it is high time the Court reconsiders its facial challenge doctrine.”
Justice Samuel Alito’s Concurring Opinion
Justice Alito’s concurring opinion was joined by Justices Gorsuch and Thomas and takes issue with much of the elaboration done by the Court in its majority opinion concerning the cases at hand.
“NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional,” Alito wrote. “Everything else in the opinion of the Court is nonbinding dicta.”
“I agree with the bottom line of the majority’s central holding,” said Alito. “But its description of the Florida and Texas laws, as well as the litigation that shaped the question before us, leaves much to be desired. Its summary of our legal precedents is incomplete.”
“And its broader ambition of providing guidance on whether one part of the Texas law is unconstitutional as applied to two features of two of the many platforms that it reaches—namely, Facebook’s News Feed and YouTube’s homepage—is unnecessary and unjustified,” he stated.
Alito goes on to criticize the majority for weighing in on some “as-applied issues” in their opinion, stating that they “may have to decide them before too long,” but “these cases do not provide the proper occasion to do so.”
Click Here to Read the Supreme Court’s Full Opinion
This decision came days after the Supreme Court declared a lack of standing in the case against the members of the federal government — including the Biden Administration — for allegedly violating American’s First Amendment rights by pressuring social media companies to censor certain speech.
[RELATED: SCOTUS Rejects First Amendment Challenge to Alleged Social Media Censorship by Federal Government]
Because the case was decided on the basis of standing, the Court did not directly weigh in on the First Amendment issues raised related to government-directed social media censorship that are raised by this case.
