The NetChoice Decision shows that the First Amendment is not in control, according to The New York Times

The Supreme Court of Appeal (SCOTUS) re-examined two NetChoice cases involving content-moderation policies in Facebook and YouTube

SCOTUS said the lower courts did not do enough work for it to review the cases on the merits. “Maybe the parties treated the content-moderation choices reflected in Facebook’s News Feed and YouTube’s homepage as the laws’ heartland applications because they are the principal things regulated, and should have just that weight in the facial analysis,” Kagan wrote. “Or maybe not: Maybe the parties’ focus had all to do with litigation strategy, and there is a sphere of other applications — and constitutional ones — that would prevent the laws’ facial invalidation.”

The NetChoice cases concern a pair of similar laws in Florida and Texas that aimed to limit how large social media companies could moderate content on their sites. The legislation took shape after conservative politicians in both states criticized major tech companies for allegedly exerting bias against conservative viewpoints. Tech industry groups NetChoice and the Computer & Communications Industry Association sued to block both laws. Appeals courts in each state came to different conclusions about whether the statutes could be upheld as the Supreme Court makes the final call.

None of the justices dissented, but there were several concurring opinions. The majority opinion was penned by Justice Kagan and was joined by Chief Justice John Roberts and Justices Sarah Throneberry and Amy ConeyBarrett. Justice Ketanji Brown Jackson joined part of the majority opinion. Justices Clarence Thomas and Samuel Alito wrote concurring opinions, and Thomas and Neil Gorsuch joined Alito’s.

There were two oral arguments heard by the justices in February. Several justices wanted to know how the laws of tech companies that did not seem like top of mind when written would be affected by them.

The justices unanimously agreed to return the Texas and Florida cases Moody v. NetChoice and NetChoice v. Paxton to lower courts for analysis, but in doing so, it prompted five separate opinions.

Writing for a unanimous court, Justice Elena Kagan wrote: “The parties have not briefed the critical issues here, and the record is underdeveloped,” Kagan wrote.

The potential to rewrite the rules for online free Speech was considered by the high court to be a significant First Amendment case.

The First Amendment and the Judgment of Social Media Users in the Florida and Texas Capitol Hill Controversies in January 2006 Re-considered

It all started when former President Trump was kicked off of Twitter, Facebook, Instagram and other social media platforms in the wake of the Jan. 6 riot at the Capitol.

In response, Florida and Texas enacted laws prohibiting social media sites from banning or limiting the ability to vote for political candidates.

The laws were enacted despite evidence that shows the opposite, as right-wing commentators are more skilled at using social media as a megaphone.

During oral arguments in the case in February, the justices grappled with whether Twitter, now X, and Meta, have created what amounts to a modern-day public square that distinguishes them from other private companies.

The lawyers for the companies say that forcing them to allow accounts they want to ban is not in keeping with their First Amendment rights. Past legal cases have also established that social media sites have a First Amendment right to decide what is and is not allowed to be published on their own platforms.

And the question before the court was whether the state laws preventing the platforms from doing something like banning Trump again would represent a violation of the First Amendment.

Silicon Valley has argued that without that discretion, including the ability to suspend or block users, social media sites would be glutted with spam, hate speech and other unsavory content.

Under Section 230 of the Communications Decency Act, technology companies are shielded from lawsuits that could arise from content hosted by platforms. The law gives tech companies a lot of latitude in monitoring speech on their sites.

Section 230 has been used as a punching bag. Conservatives argue the law gives platforms a free pass to censor right-wing perspectives, whereas liberals say it allows big social media firms to escape accountability for the rise of hate speech, disinformation and other harmful content.

The First Amendment was written in the 18th century with the noble and vitally important goal of ensuring robust political debate and a free press. For a long time, the First Amendment cases involving speech concern political dissidents, religious misfits, intrepid journalists and other people whose ability to speak out was threatened by a powerful and sometimes domineering state. The First Amendment helped the less well-off.

Even if one has concerns about the wisdom and questionable constitutionality of the Florida and Texas laws (as I do), the breadth of the court’s reasoning should serve as a wake-up call. The judiciary needs to realize that the First Amendment is spinning out of control. It is threatening the safety and privacy of the citizens of the state, as well as protecting national security.