The NetChoice Cases: A Unified First Amendment Look at a California High Court Indicator of Online Free Speech and Internet Markets

Under the new Supreme Court decision, content moderation is generally protected by the First Amendment. In the majority opinion of the court, Justice Elena Kagan wrote that platforms are making choices when they use their Standards and Guidelines to decide what third-party content to display. They are protected by the First Amendment because that is true.

The NetChoice cases concern a pair of similar laws in Florida and Texas that aimed to limit how large social media companies could moderate content on their sites. The legislation took shape after conservative politicians in both states criticized major tech companies for allegedly exerting bias against conservative viewpoints. NetChoice and the Computer & Communications Industry Association sued to block laws. Appeals courts in each state came to different conclusions about whether the statutes could be upheld, setting up the Supreme Court to make the final call.

None of the justices dissented, but there were several concurring opinions. Justice Kagan wrote the majority opinion, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett. Justice Jackson was part of the majority opinion. Justices Clarence Thomas and Samuel Alito wrote concurring opinions, and Thomas and Neil Gorsuch joined Alito’s.

The justices heard arguments in two cases in February. At that time, several justices asked how the laws would affect companies that they had not heard of before.

The justices unanimously agreed to return the Texas and Florida cases Moody v. NetChoice and NetChoice v. Paxton to lower courts for analysis, but in doing so, it prompted five separate opinions.

Writing for a unanimous court, Justice Elena Kagan wrote: “The parties have not briefed the critical issues here, and the record is underdeveloped,” Kagan wrote.

The question before the high court was considered a significant First Amendment case that had the potential to rewrite the rules of road for online free speech.

The Silicon Valley of the Capitol: First Amendment Violation by Social Media During the Decay of the Jan. 6 riot in Florida and Texas

It all started when former President Trump was kicked off of Twitter, Facebook, Instagram and other social media platforms in the wake of the Jan. 6 riot at the Capitol.

Legislators in Florida and Texas passed laws prohibiting social media sites from discriminating against conservative candidates, as well as claiming that tech companies have suppressed conservative voices.

The laws came despite evidence that, often times, the opposite is true, as right-wing commentators have become especially skilled at using social media as a megaphone.

The justices were at odds with one another about whether or not Meta and X have created a public square that distinguishes them from other private companies.

Lawyers for the tech companies say forcing them to allow accounts they think should be banned infringes on their First Amendment rights. The First Amendment right of social media sites to decide what’s published on their platform has been found to be valid in past legal cases.

And the question before the court was whether the state laws preventing the platforms from doing something like banning Trump again would represent a violation of the First Amendment.

Silicon Valley has argued that without that discretion, including the ability to suspend or block users, social media sites would be glutted with spam, hate speech and other unsavory content.

Section 230 of the Communications Decency Act protects technology firms from lawsuits related to content hosted by platforms. The law also provides tech companies wide latitude in patrolling speech on their sites.

Section 230 has become a bipartisan punching bag. Conservatives argue the law gives platforms a free pass to censor right-wing perspectives, whereas liberals say it allows big social media firms to escape accountability for the rise of hate speech, disinformation and other harmful content.