In blockbuster First Amendment cases, US Supreme Court seems splintered

If you like this post, sign up to get The Nuance newsletter delivered straight to your inbox every Sunday night!

For readers of this newsletter, it likely seems like NetChoice v. Paxton and NetChoice v. Moody — where social media firms challenge Texas and Florida’s efforts to control how the platforms curate user content — have been inching their way toward the U.S. Supreme Court since time immemorial. Last Monday, the platforms finally had their day before the justices, but the fractious conversations suggested that the cases’ disposition may raise as many questions as they answer.

In making sense of the arguments, it helps to rewind to May 11, 2022, when a bare majority of the Court granted NetChoice emergency relief from Texas’s law. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wrote a dissent at the time that signaled clear sympathy with the states on the merits. Justice Elena Kagan dissented separately without explaining her vote — leaving unclear whether she had concerns with NetChoice’s substantive case or, say, procedural misgivings about deciding a significant case on the “shadow docket.” And as is often the case when the Court rules on emergency applications, the majority — a group that included then-Justice Stephen Breyer, since replaced by Justice Ketanji Brown Jackson — said nothing.

Where did that put us going into Monday’s (extensive) arguments? Balanced on a knife’s edge. Most of the Court was likely set in its views going into the hearing, with Justices Alito, Thomas, and Gorsuch keen to castigate the platforms and Justices John Roberts, Brett Kavanaugh, Amy Coney Barrett, and Sonia Sotomayor leaning toward NetChoice. But the replacement of Justice Breyer by Justice Jackson, who has been perhaps the justice most hostile to the technology industry in her time on the Court, might have been enough to swing the balance of power since that 5-4 vote in 2022. (Per an analysis of Justice Jackson’s First Amendment record that the Reporters Committee put together when she was first nominated, there was little to no clue in her past decisions that she held such strong views on online speech.) That would leave NetChoice hoping that whatever qualms Justice Kagan might have had at the emergency stage could be assuaged on the merits.

In line with those divisions, last week’s hearing showcased a Court struggling to count to five. Some observers saw a majority for the states, others for the platforms; your correspondent’s reaction was that some justices on both sides were dug in, but the rest were searching in the middle. The justices already keen to give Florida and Texas the greenlight used the opportunity to lambaste Silicon Valley “censorship” and ask how much YouTube would weigh if it were a newspaper. Justices Roberts and Kavanaugh, for their part, seemed baffled that they even needed to explain the law’s unconstitutionality, with Justice Kavanaugh reading long chunks of the Court’s landmark decision on editorial freedom in Miami Herald Publishing Co. v. Tornillo into the record. (As readers of this newsletter know, the Reporters Committee — which led a cross-industry coalition in support of NetChoice — agrees this case comes down to Tornillo.)

The rest of the Court spent the time shopping for consensus, searching for something between a clean sweep and a complete loss for the platforms. It seemed clear that at least five justices believe the First Amendment prohibits states from hijacking paradigmatic social media functions, like the choice of what to display in a Facebook user’s news feed; it likewise seemed clear that there aren’t five justices confident that the laws violate the Constitution in all of their applications.* In that vein, a distractingly large share of the argument was dedicated to how and whether the laws regulate Uber and Etsy (edge cases that advocates for both sides struggled to address), and NetChoice seemed to lose the left-leaning justices with its insistence that states couldn’t require platforms to refrain from filtering which direct messages or emails reach users.

The path forward in the cases, as a result, remains murky. Come June, it seems plausible that a Court this divided (and perhaps confused) will ultimately fail to assemble a majority opinion.

That’s a lot of detailed shadowboxing; let’s zoom out. The degree of division on display in the NetChoice arguments was a kind of First Amendment defeat in its own right, because at heart these are easy cases. They don’t ask whether Facebook is a newspaper, whether the First Amendment immunizes Silicon Valley from regulation, or whether “censorship” is speech — chaff that Texas and Florida have scattered to provide public-relations cover, with an alarming degree of success. The only question the Court needs to answer here is whether the government has an interest in enforcing its own vision of ideological evenhandedness against a private speaker — the only goal Texas and Florida have ever suggested underpins these laws.

For half a century, the Supreme Court’s view has been “no” — not against a newspaper, not against a parade, and not against YouTube. It would be a shame to see that structural safeguard — the insight that the Constitution assigns the government no role in judging who has too much, not enough, or just the right amount of power to persuade — lost in the shuffle here.

A decision is expected in the cases by the end of June. We’ll keep you posted.

* A footnote for the most dedicated First Amendment Court-watchers: Typically, a plaintiff who wants a law struck down “on its face” rather than in their particular circumstances needs to show that the law has no legitimate applications. In First Amendment cases, by comparison, a law is facially overbroad if it “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.” Bizarrely, the justices spent the entire argument asking if NetChoice had met the non-First Amendment standard for facial challenges. Why? We can only guess, but it might be that the so-called overbreadth doctrine no longer has five supporters on the Court — and Justice Barrett, who was necessary to NetChoice’s win at the stay stage, has recently registered skepticism of it.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.