Episode description

In this case, the court considered this issue: Do Florida S.B. 7072’s content-moderation restrictions comply with the First Amendment, and do the law’s individualized-explanation requirements comply with the First Amendment?

The case was decided on July 1, 2024.

The Supreme Court held that The judgments are vacated, and the cases are remanded, because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to the Florida and Texas laws regulating large internet platforms. Justice Elena Kagan authored the majority opinion of the Court.

Under precedents like Miami Herald v Tornillo, Pacific Gas & Electric Co. v Public Utilities Commission, Turner Broadcasting v FCC, and Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, when a private entity engages in expressive activity, including curating others' speech, government interference with that activity implicates the First Amendment.

Specifically, the First Amendment protects entities engaged in expressive activities, including compiling and curating others' speech, from being forced to accommodate messages they prefer to exclude. This protection applies even when the compiler includes most items and excludes only a few. The government cannot justify interfering with a private speaker's editorial choices merely by claiming an interest in improving or balancing the marketplace of ideas. These principles likely apply to the content moderation practices of social media platforms like Facebook's News Feed, indicating that state laws regulating these practices may face significant First Amendment hurdles. However, this analysis may not apply to all of the laws' applications, so it is important for courts to conduct a thorough examination of the laws' full scope and their constitutional and unconstitutional applications in a proper facial challenge analysis.

Texas's regulation of social media platforms' content moderation policies aims to alter the speech displayed on these platforms, reflecting the state's disapproval of the platforms' current content selection and moderation practices. However, under the First Amendment, Texas cannot impose its preferences on how private entities curate and present speech, as this would amount to government control over the expression of ideas.

Justice Amy Coney Barrett joined the majority opinion in full and authored a separate concurrence.

Justice Ketanji Brown Jackson joined the majority opinion in part and authored a separate concurrence.

Justice Clarence Thomas authored an opinion concurring in the judgment.

Justice Samuel Alito authored an opinion concurring in the judgment, in which Justices Clarence Thomas and Neil Gorsuch joined.

The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.