The Supreme Court is exactly where the justices hate to be: driving without a road map.
Monday, the court heard oral arguments in disputes over state laws from Florida and Texas that would limit how social media platforms engage in content moderation. Florida’s law, for instance, bars social media platforms from permanently deplatforming political candidates. Texas’ law bars platforms from restricting content based on the users’ viewpoint.
After more than 3½ hours of oral arguments, the only thing that seems clear is that justices feel ill-equipped about tackling big questions about how the First Amendment functions as applied to online speech and social media platforms. During oral arguments, Justice Amy Coney Barrett expressed her fears about the sweep of the laws “and this is a sprawling statute and it makes me a little bit nervous.” And confusion about what exactly was being argued to the justices abounded. In response to the Florida solicitor general’s arguments in favor of the law, Justice Elena Kagan reiterated “I just wanted to sort of understand your position.” Later, Justice Sonia Sotomayor remarked to Solicitor General Elizabeth Prelogar, “General, I think I’m finally understanding the argument, but let me make sure I do, OK?”
The questions the court tackled should have everything to do with what our current First Amendment doctrine should be.
The justices agreed on the basics: that social media platforms are hugely powerful and that a great deal of hateful and harmful speech can appear on those platforms. But the question of how to balance social media platforms’ argument that they must be allowed to determine which speech and speakers to allow on their platforms with these two states’ argument that they must be allowed to ensure that their residents hear a diversity of viewpoints understandably perplexed them. As Justice Ketanji Brown Jackson remarked early in oral arguments, it is difficult for the justices to even know what analytical framework to use: “Doesn’t it depend on exactly what they’re doing? I mean, I guess the hard part for me is really trying to understand how we apply this analysis at the broad level of generality that I think both sides seem to be taking here.”
Texas and Florida enacted these laws in response to a feeling among conservatives that social media platforms are biased against them. And while one cannot completely divorce the political from the legal, the questions the court tackled should have everything to do with what our current First Amendment doctrine should be, and nothing to do with whether political conservatives might benefit from these laws.
The laws were born out of conservative lawmakers smarting from the deplatforming of Trump and his ilk. These were biased laws meant to protect and ,arguably promote, conservatives on social media. But there are still real and thorny questions regarding the First Amendment and how far it can reach to protect private companies from state interference.
The justices struggled throughout the lengthy oral arguments because they simply don’t have good precedent to rely on.
When teaching constitutional law, I, along with many other professors, tell our students that judges typically analyze questions by using an analytical framework. They look at the text of the Constitution or the law at issue, case precedent, structural concerns and historical traditions.
Some cases emphasize one facet of this framework more than others, but the problem for the Supreme Court in these cases involving the power of states to regulate social media platforms is that the old framework provides little guidance to these new questions.
The first issue is that the text of the First Amendment doesn’t tell us what to do , nor do the text of the state laws provide the requisite guidance. These cases came to the Supreme Court as “facial challenges,” meaning the social media companies are arguing that the entirety of the laws are unconstitutional on their face. And because the social media companies challenged the laws before they’ve been enforced , there isn’t a good record of exactly what these laws apply to.
The next problem is that there aren’t any cases that are “on all fours.” That is, there aren’t any cases with facts and laws similar to these. Even so, the court can’t be blamed for spending a good deal of time sifting through its prior cases trying to figure out if any provided them with a way home. Justices tried to suss out which of the court’s lines of cases these laws fit within. Are social media platforms more like newspapers and telephone companies, in which case the states can’t tell them what they can and can’t publish and disseminate? Or are they more like shopping malls, in which case, states can force them to host certain speech? The truth is, social media platforms are neither; we’re talking about new technology here. The absence of precedent, of course, didn’t stop the justices from trying to cling to its old framework. This is more than a bit ironic given the court’s willingness to blow past precedent in recent cases overturning Roe, which of course gave constitutional protection to the right to an abortion, and the affirmative action cases which previously said those policies neatly fit within the Constitution, until of course the court decided that they didn’t. The one part of the typical analytical framework that might be helpful here is the one that addresses “structural” concerns. Structural concerns often boil down to questions about which branch or level of government should make a decision. Here, we’re asking, in part, whether we want states to be able to use a fairly heavy hand in restricting content-moderation choices made by social media companies. If we do, then judges would apply a fairly deferential level of review, and likely uphold these laws. In the end, the court may want to exit the dance floor. But another option is to say judges should take a more active role here and draw lines about what is and isn’t appropriate for a state to do. This would mean judges would use a more exacting level of review when passing on the constitutionality of these laws. On the one hand, state lawmakers can argue that they are responsive to the desires of the electorate and, similarly, are accountable to them. On the other hand, judges could argue that they are the only ones who can protect our individual rights, like the freedom of speech, from being trampled on by the political branches. The justices are frankly dancing in the dark here, in part because Congress has, once again, failed to provide any baseline national standards. In the end, the court may want to exit the dance floor. The only true consensus here may be for the justices to send these cases back to lower courts in Texas and Florida to develop a “record” (meaning to give more specifics about to whom the law applies and how it applies). This would buy the Supreme Court some time, allow the lower courts to flesh out some of these issues, and perhaps let them focus on a narrower question. Ultimately, it is not the justices’ fault that they, a body guided by text, precedent and history would prefer more of those before they make a hugely impactful ruling. But in this country, when it comes to questions of censorship, the First Amendment dictates that we must lean in favor of protecting speech, even if it might be repugnant. Here that means striking down at least parts of Florida’s and Texas’ laws.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
