On Tuesday, the Supreme Court blocked a Texas law that would have effectively seized control
of the entire content moderation process on major social media sites like YouTube, Twitter,
Facebook, and Twitter.
These sites were subject to such stringent requirements by Texas, including disclosure
requirements that may be impossible to meet, that they posed a serious threat to the entire
industry of social media. Facebook removes billions worth of content every year. Texas law
requires Facebook to explain each decision in writing.
The law would have at the minimum prevented major social media platforms from engaging in
basic content moderation, such as suppressing posts by literal Nazis who advocate mass
genocide or banning people from stalking and harassing their ex-loved ones.
The Net choice vote was 5-4. However, it is possible that Justice Elena Kagan voted for the
dissent due to procedural reasons not related to the merits.
The law prohibits major social media sites from banning users, restricting or regulating a user’s
content, and even from changing the algorithms that surface content to other users due to a
This rule would render content moderation impossible in practice. Let’s say, for instance, that
@HitlerWasRight, a Twitter user, sent a tweet calling to execute all Jews. Twitter cannot delete
or ban this tweet under Texas law if it does not do so to anyone else who views the opposite
view, which is that Jews should be allowed to continue to live.
Texas Governor. Texas Gov.
It was not clear what the Court meant by its reasoning. This is very common when the Court is
asked to temporarily stop a law. The Court’s Tuesday order is temporary. It will likely have to
issue a final ruling at a later date on Texas’s fate.
However, the majority’s decision is in line with existing law.
Except for rare cases, it is clear that the First Amendment doesn’t allow the government to force
media companies (or anyone else) to publish content they don’t want to publish. In Manhattan
Community Access Corp., the Court recently affirmed that “when a privately owned entity
provides a platform for speech,” it can “exercise editorial discretion” over speech and speakers.
Although some have criticized the notion that Facebook or Twitter has First Amendment rights
following Citizens United v. FEC (2010)’s Supreme Court campaign finance decision, the rule
that corporations are protected from free speech has existed since before Citizens United.
Newspapers, book publishers, and other media corporations have been allowed to claim their
First Amendment rights in court for a long time.
Kagan, a liberal appointed in 2012 by President Barack Obama, abstained from Tuesday’s
Court order suspending Texas law.
Although Kagan didn’t explain why she dissented she is a vocal critic of the Court’s increasing
practice of deciding major cases via its ” Shadow Docket”, an expedited process in which cases
are resolved without oral argument and briefing. The net choice was raised on the Court’s
shadow Docket. It is possible that Kagan dissented to continue her criticisms of that docket.
The Court’s three most conservative justices Justices Clarence Thomas and Samuel Alito joined
a dissent from Alito that would have rewritten the Texas law.
Alito’s dissension suggests that two narrow exceptions from the First
Amendment should not be significantly widened.
Alito stated that it is unclear whether a state government can take control of social media
companies’ content moderation. He cited two cases that made narrow exceptions from the
general rule that a government cannot force a company to host a speech that it doesn’t want to
First, Pruneyard shopping center v. Robins (1980), upheld California’s law that required
shopping malls that are open to the public to allow individuals to sign a petition to be placed on
the property. The second was Turner Broadcasting in v. FCC (1994). This case upheld a federal
law that required cable companies to broadcast local TV stations.
However, Pruneyard can be read to allow Texas’s law. The Court has rescinded that decision. In
PG&E v. Public Utilities Commission (1986), 4 justices ruled that Pruneyard “doesn’t undercut
the proposition [that] forced associations that burden protected speech was impermissible.” A
social media company can refuse to associate itself with a user posting offensive content.
Justice Thurgood Marshall stated that Pruneyard should be applied only when a law is minimally
intrusive upon a company — this standard can be met by allowing petitioners to collect
signatures on your properties, not the Texas law. This would fundamentally alter the business
operations of social media companies and prevent them from suppressing the most
Similar to the Turner case, cable companies are subjected to more regulation than other media
companies. Cable companies often have exclusive physical controls over the cables that carry
television stations into homes. Social media websites are not subject to this same regulation.
Although some social media platforms might be market leaders, they don’t have control over the
infrastructure that delivers the internet to people’s homes or offices.
Reno (1997) is the Supreme Court case that governs how the First Amendment applies to the
internet. It holds that “our cases do not provide any basis for qualifying the level First
Amendment scrutiny that should apply to” the internet.
Alito’s approach would have won. The Texas law would have made every major social network
into 4chan. This toxic web of misogyny and racial abuses would have been impossible to
control. It could also have made every social media company subject to the 50 states’ 50
content moderation rules. What are Twitter and Facebook to do if California, Nebraska, or
Wyoming pass a social media regulation which contradicts Texas’s?
This outcome has been avoided for the moment. However, the Net choice was brought to the
Court’s shadow docket. A majority of Court members resolved the case in short order without
explaining their reasoning. The question of whether the First Amendment allows the government
to regulate the moderation of social media remains open. Although the fact that the Court
blocked this law bodes well for the industry, as it challenges the Texas law.
The temporary Court order in Net choice was made. The Court’s temporary order in Net choice
is temporary. It will not be finalized until the Court has made a ruling about how the First
Amendment applies to social media.
It is unlikely that the issue will be left open for too long. Two federal appeals courts reached
contradictory decisions regarding the legality and enforceability of Texas-style laws. The
Supreme Court will be required to intervene quickly to resolve this conflict.