The Supreme Court has handed a temporary victory to social media giants like Facebook (META), YouTube (GOOG, GOOGL) and TikTok by sending a set of free speech cases back to lower courts.
But the unanimous decision left unresolved the question of whether states can strip dominant social media companies of their power to unilaterally block users or remove posts that express certain points of view.
O set of cases before the high court challenged state laws in Florida and Texas that limited the ability of such platforms to hold moderate positions.
Both laws were passed due to concerns following the attack on the US Capitol on January 6, 2021, that platforms had restricted or removed posts expressing conservative views.
What the Supreme Court decided to do on Monday was send these Florida and Texas cases back to the lower courts, explaining that the Eleventh Circuit and Fifth Circuit had not adequately analyzed the so-called “facial” challenges to state laws.
Such challenges attack an entire law as unconstitutional, as opposed to challenges that allege that a law, or part of the application of a law to a particular part, is unconstitutional.
“Today’s Supreme Court ruling is a victory for First Amendment rights online,” said Chris Marchese, director of the NetChoice Litigation Center.
NetChoicea technology organization that defends large technology 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 third-party statements are allowed on their platforms.
Florida law prevented companies from removing content published by “news companies” and removing qualified political candidates from the platform.
It also banned the deprioritization of candidate-related posts and said platforms must notify and explain to users when they censor their speech. The law also required platforms to apply their content moderation rules consistently to all users.
Texas law dictates that major social media platforms must not remove posts that express a “point of view.” And like Florida law, it said platforms must individually explain each decision to moderate a user’s post.
An appeals court upheld the Florida lawand a separate appeals court was blocked Texas Legislation.
Social media companies have long resisted regulation that interferes with their editorial control over content, invoking Section 230 of the Communications Decency Act. The law immunizes platforms from liability for the content contained in users’ posts.
“The irony of the Texas and Florida laws is that they invoke journalistic freedom to force social media platforms to host speech they don’t like,” Cliff Davidsonpartner at Snell & Wilmer, told Yahoo Finance before the high court ruling was handed down.
The laws, he said, can be difficult for social media companies to interpret and follow because their application to carrying content from “news companies” depends on the amount of content a company creates or the number of its subscribers or paid users.
But “it is unclear how a social media platform should determine what content these laws protect on a day-to-day basis” because the laws are silent on how these numbers are determined, how long the minimums must be met, and whether the reported number of users must be verified.
The court also issued a ruling in another case this period 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 the 2020 presidential election.
Officials encouraged platforms to remove posts that management considered misinformation and to combat health-related misinformation.
In a 6-3 decision, the court found 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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