In a landmark decision, the Supreme Court has held for the primary time that social media platforms, identical to newspapers, have First Amendment rights that prohibit the federal government from forcing them to go away content online or to remove it. The Moody v. NetChoice decision will be considered the Brown v. Board of Education of the emerging field of social media law: It establishes fundamental principles and rights that courts will use to shape the evolution of the social media industry within the U.S. and elsewhere.
The majority opinion, written by Justice Elena Kagan and joined by the court's other liberals and moderate conservatives, Chief Justice John Roberts, Justice Brett Kavanaugh and Justice Amy Coney Barrett, technically sent the case back to the lower courts for a retrial. But while it told the lower courts what to do, the bulk opinion laid out the free speech principles that apply to social media. That's what makes the case so necessary.
At issue were laws passed in Texas and Florida after conservative users complained their views were being censored by the platforms. The laws were designed to limit how social media corporations can remove or restrict political content. The lower courts, the bulk said, had not fully resolved the technical query of whether the state's challenged laws were “manifestly unconstitutional,” meaning they might not be constitutional under any circumstances.
The crucial aspect of today's case is that the platforms are not any different from newspapers, the archetypal bearers of free press and free speech. It is critical that the chief gave Kagan, a lifelong strong supporter of free speech, the chance to put in writing such a crucial ruling.
By setting rules for moderating content and curating users' feeds through algorithms, Kagan says, the platforms are exercising editorial discretion. And it doesn't matter that they typically leave the vast majority of the content posted online: Editorial discretion is protected by the First Amendment to the U.S. Constitution and exists even when an editor or curator bans only certain limited varieties of expression.
The algorithm query
This conclusion may sound obvious, nevertheless it shouldn’t be. For several years, advocates of direct regulation of the platforms have argued that they mustn’t be treated like newspapers, but like public transport – corporations like railways or parcel delivery corporations that may tackle anyone and due to this fact be regulated by the state without having to fret about freedom of expression.
Kagan's ruling renders that argument outdated. She compared the platforms not only to newspapers, which have editorial discretion protected by the First Amendment in deciding what to publish, but additionally to cable corporations, which the court said can’t be forced to broadcast content they don’t want to broadcast.
Under First Amendment law, platforms are afforded the very best level of protection available, by analogy with newspapers and parade organizers. And those protections extend not only to human discretion in individual cases, but additionally to the algorithms that control most content curation, Kagan wrote.
The algorithm query is especially subtle since it raises the intriguing query of whether free speech rights also needs to apply to purely algorithmic decisions that usually are not guided by human decisions about what content needs to be allowed. Barrett wrote a concurring opinion raising this issue without answering it, and in addition citing artificial intelligence as a possible twist. In a footnote, Kagan responded that her opinion didn’t apply to algorithms that “respond exclusively to how users behave online.”
But as someone who has advised various large platforms on content moderation and free speech issues, I can inform you that I actually have never encountered an algorithm that doesn’t respect curation in response to content moderation rules. If such an algorithm exists, the corporate could protect its algorithm by simply adding a component to it that takes such standards under consideration. And AI itself is a set of algorithms that will be tuned to respect content moderation rules – as all publicly available, basic LLM models already do.
It is evident to the platforms and their users that curation is protected by the First Amendment.
“Naturally expressive”
Justice Samuel Alito, joined by fellow hard-line conservatives, Justices Clarence Thomas and Neil Gorsuch, wrote a concurring opinion that functioned almost like a dissent. The conservatives wanted the general public transit arguments addressed, not brushed aside, as the bulk opinion did.
We'll be hearing more about free speech and social media in the longer term. Barrett's concurrence devoted a paragraph to questions on the federal government's TikTok ban, which can likely come before the Supreme Court in 2025. But those future cases can be decided against the backdrop of the NetChoice decision, which can be a landmark in free speech for at the least a generation.
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