The Supreme Court Monday told the Fifth and Eleventh Circuit courts that there “is much work to do” on cases regarding Texas and Florida laws that sought to protect conservative viewpoints and free speech by regulating social media platforms, sending the laws back down for further review. 

In a unanimous judgment — with multiple concurrences in part — the court sent the two cases back to the appellate courts because “neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms.”

“Because this is a court of review, not of first view,” the court noted, “This Court cannot undertake the needed inquiries.”

The twin cases, Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, were forecasted by experts to “shape internet governance for years to come.” 

The Texas and Florida laws at issue aimed to regulate how social media platforms moderate content, which Republican leaders in the state argued was necessary to protect users’ freedom of speech when it comes to protecting viewpoints targeted by “Big Tech.”

NetChoice, an e-commerce trade association with members including TikTok, Google, eBay, Amazon, Twitter, and Meta, sued in both states, arguing that platforms have a right to remove content it deems fit as part of First Amendment-protected editorial discretion. 

The cases presented a circuit split after the Eleventh Circuit Court blocked Florida’s law and the Fifth Circuit Court upheld Texas’s. As the cases head back to the appeals courts, they raise key questions about whether social media platforms are a neutral modern-day public square, required to protect their users’ free speech or whether they are private entities with a right to free speech themselves. 

“In sum, there is much work to do below on both these cases, given the facial nature of NetChoice’s challenges. But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved,” the majority opinion authored by Justice Elena Kagan reads.

The lower courts “did not address the full range of activities the laws cover, and measure the constitutional against the unconstitutional applications,” the majority said. 

The justices gave the appellate courts guidance as they further evaluate the social media laws. 

“The first step in the proper facial analysis is to assess the state laws’ scope. What activities, by what actors, do the laws prohibit or otherwise regulate?,” the majority wrote. 

Though the court punted the cases, it signaled skepticism of broad state laws regulating social media platforms, noting that “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.” 

“States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views,” the opinion reads. “But the way the First Amendment achieves that goal is by preventing the government from ‘tilt[ing] public debate in a preferred direction.’” 

NetChoice argued in a brief that the anonymous and easily-accessible internet has led to all kinds of spam and trolling, and that in response, “websites have long exercised editorial discretion in creating and enforcing policies directed at speech that is offensive, objectionable, or otherwise contrary to the norms they seek to curate for their particular online communities.”

The brief noted that Florida’s “first-of-its-kind law” is one that “endeavors to punish select private companies for exercising editorial discretion in ways the state disfavors.”

The private companies are protected by the First Amendment, just as newspapers are, the brief notes, and argues that the state “unabashedly singled out certain companies for these onerous restrictions based on unconcealed hostility to how they exercised their editorial discretion.” 

Florida’s attorney general, Ashley Moody, has defended Florida’s law by saying that it aims to prevent social media companies from abusing their “enormous power over public discourse.” 

“The platforms’ argument rests on a false premise: that what appears on the platforms is their expression. The platforms make their money not from speaking themselves, but from attracting billions to their platforms to speak,” Ms. Moody’s brief argues.

“The result is a crazy-quilt mass of material,” she adds, “that is worlds apart from what a newspaper does when it develops its own top-down unified speech product and publishes it.” 

By hosting “billions of speakers and petabytes of content, the platforms are engaged in business activity—conduct—that may be regulated in the public interest,” the brief notes. “The First Amendment does not afford those who host third-party speech a right to silence the hosted speakers or to treat them arbitrarily.”

During four hours of oral arguments in February, court observers had predicted that the justices appeared skeptical of issuing a broad ruling on the topic.