Online speech cases sent back to the lower courts

Sandwiched between some blockbuster Supreme Court rulings came a decision — or more so, a non-decision — that is reverberating through the tech world. NetChoice, big tech’s lobbying arm, challenged a pair of laws in Florida and Texas that sought to restrict how social media platforms moderate content.

The high court kicked both cases back to lower courts with some added commentary. Marketplace’s Meghan McCarty Carino spoke with Lauren Feiner, senior policy reporter with the Verge, who wrote about what this means for future attempts to regulate tech. The following is an edited transcript of their conversation.

Lauren Feiner: The Court didn’t really rule on the merits of these cases, because they said, basically, the lower courts hadn’t done enough work for them to really weigh in on that here. But the justices really went out of their way to be very clear about how at least most of them think about the First Amendment when it comes to social media and online speech platforms. So we really did get a little bit more insight into how they think about these things. And they basically were trying to tell the lower courts, ‘here’s kind of some guidelines to follow so that we don’t get into this position again.’

Meghan McCarty Carino: And it seems like fundamentally, the opinion expressed that social media companies in their capacity, moderating content, that that is protected First Amendment activity.

Feiner: Exactly. I mean, that was a pretty strong statement from the majority opinion that yeah, content moderation is expressive and it’s protected by the First Amendment. And so that’s really an important outcome of this case.

McCarty Carino: And so this is not necessarily like a binding judgment. But the ruling could certainly have implications for other attempts to regulate social media. As you write, there have been a number at the state level, a lot of them have been aimed at regulating social media for kids. And I know there are kind of a number of different avenues that states have gone down with this, but sort of broadly, how might this ruling apply to those laws?

Feiner: Yeah, exactly. Like you say, the justices’ guidance here is not necessarily binding, but it is significant in the sense that it shows us what at least a great portion of the Supreme Court thinks about how the First Amendment should apply to social media. So I think that in itself is significant for other state laws that are trying to regulate algorithms or content moderation of different kinds. And we see that a lot in legislation around protecting kids on the internet. And there’s been a number of states that tried to approach this from different ways. Recently, New York signed into law the Safe for Kids Act, which is about preventing platforms from showing addictive feeds to kids without parents’ consent. That’s something that could potentially run into an issue here if a court says, well, that is a part of their own expression and their own editorial decision making. Now, the justices did leave enough room in their opinion to say some of this is going to be on a case-by-case basis, it depends on the technologies that play, the inputs at play. But that is definitely something that at least these laws are going to have to contend with.

McCarty Carino: A large number of states have attempted to regulate social media use for kids by requiring age verification, and there is a case that will be coming up before the Supreme Court on those issues. Does this have an implication there?

Feiner: Yeah, I think next term we’re gonna see Free Speech Coalition v. Paxton, which is squarely about an age verification law around porn sites. I think that will give us a lot more insight into what the First Amendment means in the context of age verification. But I think, for starters, the NetChoice decision is going to be significant for how states and federal legislatures think about what’s possible in the realm of regulating or age-gating the internet for kids or anyone else.

McCarty Carino: Right. There is a bipartisan effort at the federal level right now, that is kind of moving through Congress. Do you think this is going to affect how legislators think about crafting that?

Feiner: Yeah, I mean, it could potentially. I think any lawmaker that wants to see their law enacted and survive judicial challenge will want to be thinking about how this decision can play into the legislation that they’re crafting. But at the same time, I think the justices left enough wiggle room in their opinion to say not all regulation in this area is necessarily going to run into First Amendment problems. And maybe there are some kinds of legislation that could overcome the kind of strict scrutiny that might come with a First Amendment challenge. So I think, in some ways, the opinion might give lawmakers a feeling that they can move ahead and see what might work. But I think they’re also going to have to be maybe even more careful than they already were about how exactly they phrase their legislation.

McCarty Carino: As you noted earlier, this ruling was not a kind of sweeping overturn of these laws that the tech companies had hoped for. So what does that leave open in terms of potential regulation that may be legitimate?

Feiner: One area that seems to be kind of open for legislators to look at is around transparency. The justices seem to say that the standard called Zauderer was good law. And that’s considered a more deferential standard when it comes to transparency legislation with regards to the First Amendment. So I think that will make lawmakers who are maybe trying to do something that’s well within the First Amendment, and that could survive judicial review, they might now turn to more legislation around transparency, or at least that would be an interesting area for them to look at. And beyond that, I think the justices at a high level we’re really critical of the idea that NetChoice brought this as a facial challenge, meaning that they were saying, basically, in pretty much any circumstance these laws from Texas and Florida would be unconstitutional. And the justices were really looking and seeing for a more narrow pathway, saying this is unconstitutional when it applies to these certain kinds of tech companies. So that might give regulators a little bit of hope in saying, maybe if we curtail our legislation in a very specific way, it’ll be harder for tech companies to challenge it in this kind of like overarching way.

More on this

We mentioned a bipartisan effort in Congress that could potentially be affected by this ruling: the bill is known as the Kids Online Safety Act, which was introduced back in 2022 by Democratic Senator Richard Blumenthal and Republican Senator Marsha Blackburn. The latest Senate version apparently has the votes to pass, and the House introduced its own version in April.

The bill has, however, found critics in groups like the ACLU and the Electronic Frontier Foundation. According to recent reporting from Vox, they worry it could run afoul of the First Amendment by leading to increased censorship and gatekeeping online.

Marketplace’s Lily Jamali recently spoke with California Attorney General Rob Bonta about two regulatory efforts in that state: the Protecting Our Kids from Social Media Addiction Act would limit a platform’s ability to curate a child’s social media feed without parental or guardian consent. And the California Age Appropriate Design Code Act, which expands data privacy requirements for platforms likely to be used by kids. That latter one was blocked by a district court back in 2023, before the Supreme Court weighed in on these related First Amendment issues. On Wednesday, a state appeals court will hear oral arguments in the case.

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