WASHINGTON — The Supreme Court on Monday sidestepped a final determination on whether Republican-backed laws in Florida and Texas that seek to regulate the content moderation practices of social media companies violate constitutional free speech protections.
The justices instead sent the two related cases back to lower courts for additional deliberations on the legal questions raised under the Constitution’s First Amendment.
Justice Elena Kagan, writing for the court in a decision that dealt with both cases, said “there is much work to do” before judges can determine whether the laws should be struck down.
The court indicated that the Texas law in particular is vulnerable, with Kagan saying it is “unlikely to withstand First Amendment scrutiny.”
The justices were unanimous in the outcome, although only five other justices joined Kagan’s majority opinion.
At issue are sections of the laws that restrict platforms from barring certain problematic users or limiting the reach of their posts.
Some justices expressed free speech concerns about the laws at oral argument in February although there were also concerns that some provisions may be lawful.
The laws might have some legitimate applications against other platforms or services, including messaging applications, which could mean the court stops short of striking them down, some justices suggested.
The two interlinked cases put the spotlight on the growing power of social media platforms and concerns raised by conservatives that moderation policies disproportionately affect them.
In another case touching upon related issues, the justices last week rejected an attempt by Republicans to limit contacts between the Biden administration and social media companies. Republicans have claimed the administration has coerced platforms into removing certain content it objects to on such issues as Covid-19.
Trade groups NetChoice and the Computer and Communications Industry Association, known as CCIA, challenged the Texas and Florida laws, saying they infringe upon the free speech rights of companies by restricting their ability to choose what content they wish to publish on their platforms.
First Amendment free speech protections apply only to government actions, not those by companies.
The laws were enacted by the Republican-led states in 2021 after Twitter, Facebook and others banned former President Donald Trump after his efforts to overturn the 2020 presidential election culminated in his supporters storming the U.S. Capitol on Jan. 6, 2021.
In a move that somewhat undercut the rationale for passing the laws, Twitter was taken over the following year by billionaire Elon Musk, who has allied himself with conservative critics of the platform and allowed various banned users to return.
Both laws impose restrictions on content moderation and require companies to provide individualized explanations to users when content is removed.
The Florida law prevents companies from banning public figures running for political office and restricts “shadow banning,” whereby certain user content is made difficult to find by other users, which the state says are forms of censorship.
The Texas law prevents platforms from banning users based on the views they express. Each law requires the companies to disclose their moderation policies.
In their legal arguments, the states equated social media companies with the telecommunications industry, which transmits speech but has no editorial input. Such “common carriers” are heavily regulated by the government and do not implicate free speech issues.
Emphasizing the politicized nature of the cases, President Joe Biden’s administration filed a brief backing the legal challenges, while Trump backed the laws.
At an earlier stage of litigation, the Supreme Court in May 2022 prevented the Texas law from going into effect. An appeals court similarly blocked the Florida law.
The cases did not address another divisive issue: the legal immunity that internet companies have long enjoyed for content posted by their users. Last year, the court also sidestepped a ruling on that issue.
