Supreme Court Demands Deeper Look at Social Media Anti-Censorship Laws
The US Supreme Court has unanimously remanded two crucial cases involving social media regulation laws from Florida and Texas back to lower courts. This move concerns cases relating to both Florida and Texas, where the primary question was whether laws that restrict certain websites from making editorial censorship decisions violate the First Amendment.
On May 24, 2021, Florida Governor Ron DeSantis signed into law SB 7072, which aims to regulate social media platforms by prohibiting the deplatforming of political candidates and requiring platforms to provide explanations when censoring content, among other stipulations. SB 7072 places several specific restrictions and requirements on social media platforms, including:
- Prohibiting the willful deplatforming of political candidates,
- Banning the censorship or deplatforming of journalistic enterprises based on content,
- Imposing hefty fines on social media platforms that deplatform candidates for political office—up to $250,000 per day for statewide candidates and $25,000 per day for other candidates,
- Requiring platforms to notify users and provide explanations before taking actions like censoring or deplatforming,
- Granting Floridians the right to sue platforms for violations and seek monetary damages,
- Empowering the Florida Attorney General to sue technology companies under the state’s Unfair and Deceptive Trade Practices Act,
That same year, Texas Governor Greg Abbott signed HB 20, a law regulating social media platforms by prohibiting them from censoring content based on viewpoint and imposing several obligations related to content moderation processes.
The key provisions of HB 20 stipulate that social media platforms with over 50 million monthly active users in the US cannot censor content based on viewpoint. Additionally, the law mandates that these platforms must notify users and provide explanations when content is removed, enable users to submit and track complaints about content removal decisions or instances where illegal content was not removed, and allow users to appeal content removal decisions.
The states were challenged on the constitutionality of the laws, in relation to the First Amendment. The key legal questions were:
- Whether the First Amendment prevents a state from mandating that social media companies host third-party communications, and from controlling the manner in which they do so,
- Whether the First Amendment stops a state from requiring social media companies to inform and explain to users when their content is censored,
After a back-and-forth legal challenge, the cases ended up at The Supreme Court.
During oral arguments, the Supreme Court had already expressed considerable doubts about the laws, suggesting that these laws might infringe upon the First Amendment rights of companies like Facebook and YouTube. The justices spent nearly four hours discussing the implications of these regulations.
In court, Florida Solicitor General Henry Whitaker argued that social media companies, which he described as mere “transmitters” of user speech, do not have a constitutional right to inconsistently apply censorship policies.
In contrast, trade group representative Paul Clement emphasized the necessity of editorial discretion to filter the vast content online, making platforms functional for users and advertisers alike.
Justice Kagan in particular questioned the constitutionality of the laws, particularly in how they prevent platforms from making independent editorial decisions, a critical aspect of First Amendment rights.
Justice Brett Kavanaugh highlighted the core issue—whether the government is impermissibly suppressing speech, noting the court’s precedent of protecting editorial control.
Meanwhile, Justice Amy Coney Barrett, as she did in the oral arguments for Murthy v. Missouri (another free speech case where she sided with the Biden administration) compared the role of social media platforms in moderating content to newspapers rather than venues like law schools, which can be compelled to host military recruiters under certain federal conditions.
Justice Clarence Thomas and Justice Samuel Alito showed more openness to the state laws, with Thomas questioning the extent of First Amendment protections for platform moderation decisions and Alito scrutinizing the terminology of “content moderation.”
On Monday, the Supreme Court instructed the appellate courts to revisit their rulings on the 2021 statutes that permit state oversight of content moderation by major social media companies.
We obtained a copy of the decision for you here.
Justice Elena Kagan, in her opinion for the court, stated that, even though the decisions of the lower courts were actually vacated on grounds unrelated to the First Amendment, the First Amendment argument stands. Justice Kagan took the time to explain how the court views First Amendment principles regarding this issue, taking a swipe at the Fifth Circuit’s initial ruling — “It is necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit, whose decision rested on a serious misunderstanding of First Amendment precedent and principle.”
The court is making it clear that the main objective of the Florida and Texas laws would not be expected to survive a First Amendment argument challenge.
“The Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression. And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds,” the opinion reads.
The First Amendment argument could be summarized with this line: “However imperfect the private marketplace of ideas here was a worse proposal – the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others.”
Justice Kagan ruled that the appellate courts had not adequately considered the broad challenge presented by NetChoice, focusing instead on narrower issues brought forth by the parties.
“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,” the court wrote.
Here are the key points of the court’s argument:
Facial Challenge and Scope of the Laws: The Court emphasized the importance of understanding the full scope of the statutes in question. It instructed that the lower courts should assess not just the Big Tech applications (like those affecting major social media feeds) but all potential applications and ramifications of the laws, including less obvious ones, to determine whether a substantial number of the law’s applications are unconstitutional.
First Amendment Protections: The Court argued that the editorial discretion of social media platforms is protected under the First Amendment. This includes their decisions to filter, prioritize, label, or exclude certain content. By compelling platforms to alter their expressive content, the laws potentially infringe on their First Amendment rights. “The Court has repeatedly held that ordering a party to provide a forum for someone else’s views implicates the First Amendment if, though only if, the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt,” Justice Kagan stated.
Erroneous Lower Court Analyses: The Court noted that the previous appellate decisions did not conduct a proper facial analysis of the First Amendment challenges. The Fifth Circuit, in particular, erred by not recognizing the expressive activity involved in content moderation and by inadequately addressing the platforms’ First Amendment rights.
Importance of Editorial Discretion: The Court underscored that just like traditional media entities, social media platforms exercise editorial control that shapes their public communications. Compelled changes to this editorial content, such as requiring platforms to carry messages they wish to exclude, interfere with their expressive freedom.
Standard for Reviewing Facial Challenges: The Court clarified the standards for facial challenges in the context of the First Amendment, stating that challengers must demonstrate that the unconstitutional applications of the law substantially outweigh the constitutional ones.
The Supreme Court’s decision to remand the social media regulation cases back to the lower courts signals a cautious approach to resolving the tensions between state regulations and First Amendment rights. As the legal battles continue to unfold, the implications for how social media platforms operate within the United States could be profound, particularly in light of the First Amendment arguments made by TikTok, which is facing a ban.
BREAKING: Supreme Court Ruling Destroys Deep State Lawfare Against Trump, Says Top Lawyer
In Blow to Federal Agency Power Supreme Court Reverses 40-Year-Old Ruling
The U.S. Supreme Court last week overturned a decision that for 40 years had given federal regulatory agencies the upper hand when challenged in court.
The court’s 6-3 decision — which CNN said “stands to transform how the federal government works” — reversed the landmark 1984 decision in Chevron v. Natural Resources Defense Council, a case that gave rise to what’s known as the Chevron deference doctrine.
Under the Chevron doctrine, federal agencies had the power to interpret a law they administer when that law is vaguely written, and courts were required to defer to the agency’s interpretation of a statute.
In a ruling by Chief Justice John Roberts, the justices rejected the Chevron deference doctrine, calling it “fundamentally misguided.” They said courts should rely on their own interpretation of ambiguous laws rather than having to accept the agency’s interpretation.
W. Scott McCollough, lead litigator for Children’s Health Defense’s (CHD) Electromagnetic Radiation (EMR) & Wireless cases and a practitioner of administrative law for more than 40 years, told The Defender he was “happy to see the Chevron deference doctrine go” because it “mostly benefitted the powerful.”
Agencies like the U.S. Food and Drug Administration (FDA), the Centers for Disease Control and Prevention and the Federal Communications Commission are supposed to work for the public — but when they are captured by industry, deferring to their “expertise” may mean deferring to the preferences of the industry they’re supposed to regulate, McCollough said.
“The bottom line is that the doctrine gave the powerful — the people who control the agencies — a huge thumb on the scale,” said McCollough, “making it nearly impossible for regular people to challenge agency favoritism in court.”
Dr. Meryl Nass said on Substack that the crux of the issue is whether the agencies or the courts (and plaintiffs) should have more power.
“Today, the agencies have been captured so I prefer to take away their power,” Nass said. “But someday if they can be reined in to work for the public, I might wish they had more.”
Who has final say on interpreting the law?
Kim Mack Rosenberg, CHD general counsel, told The Defender, “This ruling answers the question, ‘If a law is ambiguous, who has the final say on it?’”
Deference to the Chevron decision allowed agencies to essentially be the ultimate decision-makers in interpreting ambiguous laws, giving tremendous power to federal agencies, she said.
“Unfortunately,” Mack Rosenberg continued, “many of these agencies are ‘captive agencies’ with close ties (including financial ties) to the industries they are charged with regulating. So they lack objectivity with respect to those industries.”
The ruling means federal judges now have more authority to interpret these laws, she explained.
Mack Rosenberg said the ruling is very important for CHD since “many of CHD’s lawsuits seek to hold government agencies accountable for their action or inaction, and we anticipate future litigation in this area as well.”
Friday’s ruling doesn’t reopen old decisions, so prior cases that used the Chevron deference doctrine in reaching an outcome won’t suddenly be moot.
Removing the deference established by Chevron does not mean that courts will simply ignore agencies’ interpretations, Mack Rosenberg said, but the ruling gives courts more potential authority to interpret ambiguous laws without being bound by agency interpretations.
“However,” she added, “there is also a drawback.”
The courts many times don’t have the niche field expertise required to clarify ambiguous details about certain laws. This may be a problem, especially in lawsuits regarding laws and regulations that are very scientifically dense or technical.
When Congress passes laws, it sometimes intentionally leaves technical details ambiguous, Mack Rosenberg said. “Congress doesn’t have the expertise to write out everything in fine detail,” she said. “The idea is that the executive agency — with its expert staff — interprets and implements that law. That’s what federal agencies and executives are for.”
For instance, the U.S. Environmental Protection Agency hires people with Ph.D.s in the environmental sciences, she said. “A federal judge may have zero expertise on environmental issues.”
McCollough pointed this out, too.
“Most judges hate administrative law cases,” he said. “The topics make their heads hurt because they don’t know the difference between nitrous oxide and nitrogen oxides and prefer to not have to figure that out.”
Dissenting Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, voiced the same concern.
In her opinion, Kagan stressed that agencies are more likely than courts to have the technical and scientific expertise to make decisions on interpreting technical standards and laws.
She said the Chevron deference doctrine “has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
Ruling could cause ‘shock to the legal system’
Kagan predicted last week’s ruling “will cause a massive shock to the legal system,” possibly casting doubt on established law interpretations, “threatening the interests of many parties who have relied on them for years,” she said.
Amy Howe in an article for SCOTUSblog wrote that when the Supreme Court issued its decision in the Chevron case more than 40 years ago, the decision wasn’t regarded as particularly consequential.
“But in the years since then,” Howe wrote, “it became one of the most important rulings on federal administrative law, cited by federal courts more than 18,000 times.”
Kent Barnett, a University of Georgia School of Law professor specializing in administrative law, told CNN, “There is no substantive area that this doctrine does not touch.”
Some researchers said the reversal of the Chevron doctrine could undermine the FDA’s drug and device approval process.
Currently, drugs and devices are approved by the FDA based on evidence that companies submit from what the law calls “adequate and well-controlled” investigations — but the definition of “adequate and well-controlled” has been left up to FDA interpretation.
Substacker Matt Stoller said the new ruling “has invited chaos in government.”
“Thousands upon thousands of regulations and laws were crafted under the premise that agencies could interpret their statutes themselves and write rules executing them,” he said. “Now lifetime appointed judges without actual expertise are going to have the chance to rewrite all of them.”
BREAKING: Supreme Court Ruling Destroys Deep State Lawfare Against Trump, Says Top Lawyer
Unveiling the Brennan-Clapper Files: How January 6 Shifted Surveillance Powers
America First Legal (AFL) has published another batch of documents (referred to collectively as “Deep State Diaries”) originating from the Department of Homeland Security (DHS) advisory outfit, Homeland Intelligence Experts Group.
AFL refers to this body as the “Brennan-Clapper committee” since it included former Director of National Intelligence James Clapper and former CIA Director John Brennan.
The group has been disbanded, judging by AFL’s press release also thanks to its efforts, and now internal notes from meetings, which the non-profit said it obtained through litigation, have seen the light of day.
These documents focus on the way the Biden administration and its allies handled the events of January 6, the Mar-a-Lago raid, and social platforms for what AFL says is “targeting and surveillance of political dissent.”
The internal notes reveal that January 6 proved useful in expanding surveillance, with one member of the group saying that policies regarding collection and reporting intelligence on Americans changed following the events on that day in Washington.
Notably, this has to do with more surveillance powers regarding what’s known as domestic violent extremism (DVE) – to whatever law enforcement decides to apply this label.
And the way they apply it, according to AFL’s “Deep State Diaries” material, is to persons who are religious, members of the military, or Trump supporters.
It’s easy to see how January 6 might have given momentum to carry out more surveillance of online speech – one of the participants in a conversation revealed in the now-unveiled documents also remarked that the nature of the support for the “mission set” had changed by becoming political.
This is interpreted to mean that January 6 was an excuse to change the scope of the activities of the Office of Intelligence and Analysis (I&A, a part of the DHS) – by expanding it.
As for the source of the support mentioned in the exchange, AFL notes that the group was heavily Democrat-leaning (98% of contributions the members – former intelligence community officials – made went to candidates of that party).
An unnamed member of the group at one point made the suggestion that I&A should, post-January 6, adopt practices that “even the FBI says it does not have the authority to do, the Senate has refused to give to any law enforcement agency, and members of Congress generally oppose,” AFL remarked.
BREAKING: Supreme Court Ruling Destroys Deep State Lawfare Against Trump, Says Top Lawyer
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