In response to news that the Supreme Court of the United States has ruled to vacate NetChoice’s suit against Texas social media laws in NetChoice v. Paxton—finding that the Fifth and Eleventh Circuit Courts did not properly consider the nature of the “facial” First Amendment challenges to the laws—the American Economic Liberties Project released the following statement.

“NetChoice sought an overbroad application of the First Amendment to block all forms of social media regulation, and they very clearly lost,” said Zephyr Teachout, Senior Advisor at the American Economic Liberties Project. “Instead of a broad shield, they got a strong reprimand from the Court for trying to force a whole suite of complicated, function-based questions into one case.”

“The Majority Opinion by Kagan is disappointing, because it analogizes social media platforms to the editorial work of newspapers,” added Teachout. “As we argued in our amicus brief, and as noted in today’s concurring opinions, social media platforms are more like town squares. The First Amendment is not a shield for censorship and discrimination in the town square, and it shouldn’t protect against discrimination and targeting by opaque algorithms. However, much of the opinion is dicta, and a majority of the Court signaled openness to tech platform regulation, especially where the regulation is not driven by animus.”

Moody v. NetChoice originated from separate challenges to states laws in Texas and Florida, which sought to curtail the ability of social media platforms to censor or discriminate against content on their platforms. The laws primarily targeted the content moderation policies of large social media platforms like Facebook, X (formerly Twitter), and YouTube from censoring speech based on the viewpoint of the speaker. NetChoice is a trade association whose members include several online platforms and Big Tech companies, including Google (YouTube), Amazon, Netflix, Meta (Facebook), and AirBnB. The case arrived at the Supreme Court from the 11th and 5th Circuit Courts of Appeal, and the Supreme Court vacated the decisions by both courts.

The Opinion was authored by Justice Kagan. Justice Jackson, Barrett, Thomas and Alito authored concurring opinions. The concurring opinions, in particular, showed restraint in the application of First Amendment law to conduct by social media platforms, and repeatedly emphasized that the Majority Opinion had offered non-binding dicta to the lower courts.

• From Justice Kagan’s opinion: “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 … But Texas’s asserted interest relates to the suppression of free expression, and it is not valid, let alone substantial.”
• From Justice Thomas’ concurrence: “The common-carrier doctrine should continue to guide the lower courts’ examination of the trade associations’ claims on remand… Though they reached different conclusions, both the Fifth Circuit and the Eleventh Circuit appropriately strove to apply the common-carrier doctrine in assessing the constitutionality of H. B. 20 and S. B. 7072 respectively.”
• From Justice Jackson’s concurrence: “Not every potential action taken by a social media company will qualify as expression protected under the First Amendment. But not every hypothesized regulation of such a company’s operations will necessarily be able to withstand the force of the First Amendment’s protections either. Beyond those broadest of statements, it is difficult to say much more at this time… Faced with difficult constitutional issues arising in new contexts on undeveloped records, this Court should strive to avoid deciding more than is necessary… In my view, such restraint is warranted today.”
• From Justice Alito’s concurrence, joined by Justices Thomas and Gorsuch: “The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional. Everything else in the opinion of the Court is nonbinding dicta … It is a mystery how NetChoice could expect to prevail on a facial challenge without candidly disclosing the platforms that it thinks the challenged laws reach or the nature of the content moderation they practice.”

During oral arguments, Texas Solicitor General argued on behalf of Texas Attorney General Ken Paxton that social media platforms do not have unfettered discretion under the First Amendment to censor or discriminate against viewpoint-based speech, and cautioned against an interpretation of the First Amendment that would block state lawmakers from regulating social media platforms for other reasons, including to protect children from addictive algorithmic targeting. Several states have proposed legislation to prohibit social media platforms from targeting children with addictive algorithms, including a bill signed into law last week by New York Governor Kathy Hochul. Earlier this year, the California State Senate passed a similar bill, and the Kids Online Safety Act is pending federally.

Earlier this year, Economic Liberties, on behalf of a group of academics, historians, and legal experts, filed an amicus brief in the Supreme Court case, NetChoice v. Paxton, arguing that the Court should refuse to extend heightened First Amendment protections to social media platforms that hold themselves out as modern-day public squares. As the brief argues, to hold otherwise would effectively immunize monolithic entities like Meta, Twitter, and TikTok from any meaningful regulation in the future and permanently entrench their power over the Internet and our daily lives. Economic Liberties’ amicus brief was submitted by the below scholars and referenced during oral arguments.

• Richard John, Professor of History and Communications, Columbia Journalism School
• Matthew Lawrence, Associate Professor of Law, Emory University School of Law
• Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard Law School
• Zephyr Teachout, Professor of Law, Fordham Law School
• Tim Wu, Julius Silver Professor of Law, Science and Technology, Columbia University Law School

Read the full amicus brief here.

Learn more about Economic Liberties here.

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The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; foreign trade arrangements support domestic security and democracy; and wealth is broadly distributed to support equitable political power.