Supreme Court remains skeptical of attempts to regulate social media (Guest Opinion by Roy S. Gutterman)

Roy S. Gutterman is a professor and director of the Tully Center for Free Speech at the Newhouse School at Syracuse University.

The internet remains free and open, the Supreme Court ruled this month … sort of. There’s a bit of hyperbole in that statement, mirroring some of the rhetoric that emerged in litigation in a handful of court cases culminating a decision largely rejecting government efforts to rein in social media platforms and other speakers.

The court left the biggest case, a consolidation of two cases involving laws from Texas (NetChoice v. Paxton) and Florida (Moody v. NetChoice), to the last day it released decisions. It was overshadowed by the frenzied cacophony unleashed by the court’s other big decision, the Trump immunity case.

Internet policy and social media regulation are not the sorts of things most people think of on a daily basis, even though the internet is as essential as electricity and fuel. But the court’s potentially blockbuster cases relating to the rights of social media platforms to moderate their users or block them entirely made big headlines and bold predictions about how the Supreme Court was finally going to rein in big, bad social media.

The NetChoice cases were supposed to answer the question of whether the First Amendment protects social media companies when they determine who can or cannot use their platforms, and what standards they can apply to de-platform, ban or otherwise mute some types of disfavored speakers under their terms of service.

Though the court invoked the First Amendment in its 9-0 decision, it ultimately did not rule on the two laws’ constitutionality and kicked the question back to lower courts. Nevertheless, the court’s opinion, written by Justice Elena Kagan, is heavy on the First Amendment rights of social media platforms to determine who uses their platforms.

At the heart of the arguments sat the idea that some conservative speakers regularly feel their views are discriminated against by these mega-services — a viewpoint also shared by some fringe speakers, conspiracy theorists and purveyors of disinformation or misinformation on public issues ranging from election denial to Covid-19 policies, as well as run-of-the-mill purveyors of what could be considered hate speech.

This controversy prompted Texas and Florida to pass far-reaching laws setting standards for how a speaker can be deplatformed and requirements that the social media companies provide explanations and allow appeals when they engage in what the laws’ supporters consider censorship.

Interestingly, dissatisfaction with social media crosses the political aisle. But so does the First Amendment. Even though the internet and social media occupy a powerful position in shaping public opinion and allowing users to express themselves and disseminate information, they are and continue to be private media entities, the same way newspapers, magazines, films, books and cable television are. The First Amendment begins with “Congress shall make no law …” Over the years, the appropriate synonym became: Government shall make no law, whether it be at the federal or state level.

Broadcast television and radio (or what remains of broadcasting in the modern media world) must comply with some regulations under Federal Communications Commission rules for responsible use of the public airwaves. But they are still free to determine their own content without government oversight or interference.

The infinite nature of the digital world has been a pillar of the court’s reluctance to allow government regulation of content online. In the majority opinion, Kagan acknowledged that there is a flood of content and varying viewpoints on the internet.

The court also reiterated the independent role of the media and its standing under the First Amendment. Interestingly, the court reached back 50 years to a case that invalidated a Florida law that required a newspaper to provide political candidates a right to respond to critiques. The case, Miami Herald v. Tornillo, stands for the First Amendment rights of old media to determine their own content, free from government interference or compelled speech. The censorial effect of such a law violated the First Amendment when such a law was applied to newspapers; 50 years later, similar laws did the same to social media platforms.

“To give government that power is to enable it to control the expression of ideas, promoting those it favors and suppressing those it does not. And that is what the First Amendment protects all of us from,” Kagan wrote for court.

However, the majority opinion only ruled on the “facial challenge” to the laws, meaning there might still be room for lower courts to tweak their application of the laws. The majority opinion was accompanied by several concurrences with nuanced interpretations of how far the government might ultimately be able to go in future challenges to big social media.

The court’s decision to keep the government out of the internet regulation game is consistent with its other recent internet-based cases — three others decided this term (one involving whether the government pressured social media companies to carry a government message, and two relating to whether government officials can block critics) and two last year (maintaining immunity for digital entities under Section 230 of the Communications Decency Act).

These decisions are also consistent with the Roberts Court’s general retraction of government regulation. Just a week before, the court issued rulings limiting the powers of regulatory agencies. In recent years, the court has also expanded definitions and application of rights under the First Amendment in a wide range of situations, including supporting a high school football coach’s free speech right to pray and likely compel his players to do so; a bakeshop denying service to gay patrons under a religious and speech claim; and even a high school cheerleader’s right to curse out and insult the coach who cut her from the team on social media — not to mention the expansion of First Amendment rights to corporations and unions under the auspices of campaign finance regulations.

The internet remains largely unregulated, to the dissatisfaction of many. Interestingly, the regulatory schemes at issue in Texas and Florida made no concessions toward the ubiquity and the necessity of internet access itself. The desire to regulate social media entities also seems to contradict net neutrality policies, which is a political hot potato that shape-shifts depending on who is in charge of the White House.

At the end of the day, as the court has done for more than 27 years, it did not reshape the body of First Amendment law to fit the internet age, a point Kagan introduced at the beginning of her opinion.

The body of internet law expands with each term, as does the court’s understanding of the role the digital world and social media play in our daily lives and how it relates to the First Amendment. Even though social media platforms play a major role in shaping opinion, disseminating information and facilitating expression, there are always other platforms and new places to go.

We can thank the First Amendment, in part, for that.