Facebook, Google, Twitter and NetChoice v. Paxton: The First Amendment’s First Amendment and the Role of Social Media

This fact has not gone unnoticed. Texas a few years back wrote its own law to govern big tech companies, barring them from discriminating on the basis of viewpoint when they take posts off their social media platforms. Two advocacy groups funded by Facebook, Google, Twitter and other companies sued almost immediately, arguing that they have a First Amendment right to remove whatever they want from their platforms for any reason, sort of as an editor might if she were choosing which articles to run in her print magazine every month. It has raised a constitutional question tricky enough to have made it to the Supreme Court in a case that will be argued on Monday called NetChoice v. Paxton.

On the average day, some 95 million pictures are posted on Instagram, along with 34 million videos on TikTok and hundreds of millions of tweets. Some go viral, most don’t. For violating content rules, some percentage of the numbers are taken down. Given the volume of posts and videos, it is no exaggeration to say that the rules for social media have become the most important speech regulations on the planet, policing what can and cannot be said online.

The laws were aimed at social media platforms that have moderation practices. But throughout the arguments in Moody v. NetChoice and NetChoice v. Paxton, the justices repeatedly name-checked companies whose primary functions are not hosting users’ views — like Etsy, Uber, and Venmo.

Hans said that NetChoice was hoping to get rid of it and move onto a new issue. “And that’s not going to happen based on what I heard today.”

The facial challenges gave NetChoice the chance to prevent similar laws from being brought up around the country, but it seemed to be a hang-up for some justices, who were worried about creating an industry that could not be touched by regulation.

The laws don’t simply ban (allegedly) discriminatory moderation; they also implement requirements that sites disclose aspects of how they moderate. Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, noted in an emailed statement that the justices did not spend much time discussing these transparency requirements. Nonetheless, “how the court addresses those provisions could effectively decide whether even carefully drafted social media transparency laws can be constitutional,” he said.

Lawrence Walters, general counsel at the Woodhull Freedom Foundation, said at a press conference after the arguments that the case could travel that path. “I think the justices really wanted to explore what all their options were before rendering what could be a historic landmark decision.”

If the justices decided to send the cases to the lower courts for a more developed record, it will be possible for the cases to reach the top court later in the process.

“The challenge for the justices is that the cases came to them in an ‘all or nothing’ procedural posture, and they spent a lot of time trying to figure out whose fault that was and what they should do about it,” James Grimmelmann, digital and information law professor at Cornell Law School, said in an emailed statement. “If I had to guess, I would predict that the court will issue relatively narrow rulings that make it clear that the most restrictive portions of the state laws are unconstitutional, and then let litigation play out to determine whether other provisions of these laws — or of other future laws — are constitutional.”

The factual record of the cases was not developed very well, which caused the court to struggle with limits of the law. NetChoice challenged the laws early on and sought preliminary injunctions to stop them from taking effect.

The court could develop some sort of standard to say which companies can be subject to laws like Florida’s and Texas’, even while skirting thorny questions like whether social media sites are common carriers akin to delivery trucks or telephone companies. Hans said one option would be to explain what makes a company eligible to exercise editorial discretion.

Hans said the court realized that deregulatory approaches to the First Amendment had drawbacks and that if they went with a traditional approach, the economy would not be protected from regulation. “So that, I think, goes to why there was so much discussion of Uber versus Etsy versus Gmail versus Facebook — really trying to figure out what the lines are here.”

The justices repeatedly discussed how NetChoice made a “facial” challenge against the social media laws, meaning it argued they have no possible constitutional application. An “as applied” challenge, on the other hand, would mean that the laws are unconstitutional only as applied to a specific set of companies or circumstances.

The Supreme Court justices pressed for ways to rule without giving either side everything they asked for during their arguments on Monday.