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If you spent Monday morning following each of the cases handed down by the Supreme Court, you’re probably experiencing a bit of whiplash.
The biggest news out of the Court on Monday, of course, is a sweeping decision holding that former President Donald Trump was effectively allowed to do crimes while he was in office. Indeed, under the six Republican justices’ decision in Trump v. United States, it is very likely that a sitting president can order the military to assassinate his political rivals without facing any criminal consequences for doing so.
Just a few minutes before the Supreme Court handed down its Trump decision, however, it also handed down another case reaffirming that the First Amendment does not permit Republican-led legislatures to seize control of what content is published by media companies. That decision, in Moody v. Netchoice, was 6-3, with three Republican justices who also held that the leader of the Republican Party was allowed to commit many crimes while he was in office joining Justice Elena Kagan’s majority opinion.
So, on the same day that the Supreme Court appears to have established that a sitting president can commit the most horrible crimes imaginable against someone who dares to speak out against him, the same Court — with three justices joining both decisions — holds that the First Amendment still imposes some limits on the government’s ability to control what content appears online.
Chief Justice John Roberts and Justice Brett Kavanaugh joined both decisions in full. Justice Amy Coney Barrett joined the Netchoice opinion in full, plus nearly all of the Trump decision.
It’s impossible to comprehend the value system that would lead a justice to join both decisions, but nevertheless here we are. That said, the Court’s decision in Netchoice is a victory for free speech, even if it comes the same day as one of the most chilling decisions in the Court’s history.
What’s at stake in Netchoice?
Netchoice concerns two state laws, one from Florida and one from Texas, which seek to control what content must be published by major social media platforms such as Facebook, Twitter, or YouTube. Both laws were enacted by Republican legislatures, and signed by Republican governors, for the very purpose of forcing these platforms to publish right-leaning content that they would prefer not to publish.
As Texas Gov. Greg Abbott said before signing his state’s law, it was enacted to stop an allegedly “dangerous movement by social media companies to silence conservative viewpoints and ideas.”
The two laws, and especially the Texas law, are extraordinarily broad. Texas’s, for example, prohibits major social media companies from moderating content based on “the viewpoint of the user or another person” or on “the viewpoint represented in the user’s expression or another person’s expression.”
That’s such a sweeping restriction on content moderation that it would forbid companies like YouTube or Twitter from removing content that is abusive, that promotes violence, or that seeks to overthrow the United States government. Indeed, Kagan’s opinion includes a bullet-pointed list of eight subject matters that the Texas law would not permit the platforms to moderate, including posts that “support Nazi ideology” or that “encourage teenage suicide and self-injury.”
In any event, Kagan makes clear that this sort of government takeover of social media moderation is not allowed, and she repeatedly rebukes the far-right US Court of Appeals for the Fifth Circuit, which upheld the Texas law.
As Kagan writes, the First Amendment does not permit the government to force platforms “to carry and promote user speech that they would rather discard or downplay.” She also cites several previous Supreme Court decisions that support this proposition, including its “seminal” decision in Miami Herald Publishing Co. v. Tornillo (1974), which held that a newspaper has the right to final control over “the choice of material to go into” it.
Nothing in Kagan’s opinion breaks new legal ground — it is very well-established that the government cannot seize editorial control over the media, for reasons that should be obvious to anyone who cares the least bit about freedom of speech and of the press. But the Court’s reaffirmation of this ordinary and once uncontested legal principle is still jarring on the same day that the Court handed down a blueprint for a Trump dictatorship in its presidential immunity case.
It’s also worth noting that Kagan’s decision is technically a victory for Texas and Florida, although on such narrow grounds that this victory is unlikely to matter.
What Kagan’s Netchoice decision actually says
The specific holding of the Netchoice opinion turns on a distinction between a “facial” challenge to a state law, and a more limited “as-applied” challenge.
A facial challenge, which is what the social media platforms brought against Texas and Florida’s unconstitutional laws, alleges that the law is unconstitutional in all of its applications and must be effectively removed from the books in its entirety. That contrasts with an “as-applied” challenge, which merely alleges that a law is unconstitutional when it is enforced against a particular plaintiff in a particular context.
Facial challenges, however, are notoriously difficult to win. Ordinarily, as Kagan writes, a plaintiff must show that “no set of circumstances exists under which the [law] would be valid,” though it is somewhat easier to win such a case in the First Amendment context.
While Kagan’s Netchoice opinion lays out why the Texas and Florida laws are unconstitutional as applied to social media companies’ core product — a curated list of content authored by social media users — both laws are so broadly drafted that they also may apply to less core features at websites like Facebook or Twitter, such as “direct messaging or events management.”
Kagan faults the lower courts for failing to separately evaluate whether the laws can constitutionally be applied to these non-core features, and sends the case back down to those lower courts to do that work. That said, the bulk of her opinion is quite clear that the laws cannot constitutionally be applied to core features like Facebook’s Newsfeed or YouTube’s homepage.
So, on the same day that the Supreme Court holds presidents above the law, it also appears to rule that lesser public officials still must comply with the First Amendment.
