Florida, Texas social media laws kicked back to lower courts by Supreme Court. What to know

The U.S. Supreme Court on Monday kicked challenges to Republican-backed social media moderation laws in Florida and Texas back to the lower courts. The laws prohibited social media platforms from restricting politicians or moderating political posts the company finds objectionable.

The laws were passed in response to concerns that conservative viewpoints were being suppressed on Facebook, Twitter and YouTube. Trade groups representing the social media companies, collectively known as NetChoice, sued, saying governments can’t tell the platforms what it must post and moderation is necessary to prevent the sites from becoming mere “gobbledy-gook” and to avoid extremism, harassment and hate speech.

The Florida law was blocked by a federal judge in May 2022 and a similar Texas law was upheld by the 5th Circuit four months later. The Supreme Court vacated both decisions, saying that neither of the lower courts properly considered the nature of the challenges.

.Justice Elena Kagen, speaking for the majority, said the lower courts didn't properly evaluate whether the laws violate the First Amendment.

"So on remand, each court must evaluate the full scope of the law’s coverage. It must then decide which of the law’s applications are constitutionally permissible and which are not, and finally weigh the one against the other," Kagen wrote.

There were no dissenting opinions, although different justices concurred in part. Amy Coney Barrett pointed out how complicated the task would be for social media platforms with such wide functions and needs. Justices Samuel Alito and Clarence Thomas both concurred with the decision but said the social media trade associations failed to provide the basic facts needed to evaluate their challenges.

"The only binding holding in these decisions is that NetChoice has yet to prove that the Florida and Texas laws they challenged are facially unconstitutional," Alito said in his concurrence. "Because the majority opinion ventures far beyond the question we must decide, I concur only in the judgment."

The decision comes just days after the Supreme Court ruled against conservative states that accused the Biden administration of unconstitutionally pressuring social media platforms to remove content.

What is the social media moderation law?

GOP leaders were outraged in 2020 when several popular platforms banned former President Donald Trump for posts potentially inciting or glorifying violence after the Jan. 6 riot at the Capital that resulted in five deaths, dozens of police officers injured and millions of dollars in damages.

X, then Twitter, banned Trump for violation of its Glorification of Violence Policy. The company's new owner, Elon Musk, reinstated Trump's account in 2022.

The former president's Facebook and Instagram accounts were permanently banned but parent company Meta changed it to a two-year ban in 2023. YouTube suspended Trump's channel "in light of concerns about the ongoing potential for violence."

In response, Florida passed SB 7072, known as the Stop Social Media Censorship Act.

“In recent years, we’re seeing a shift away from internet platforms, social media platforms from really being liberating forces to now being enforcers of orthodoxy,” DeSantis said in 2021. “Their primary mission, or one of their major missions, seems to be suppressing ideas that are either inconvenient to the narrative or that which they personally disagree with.”

Why did social media sites fight back against the moderation laws in Florida and Texas?

Tech industry trade groups representing the major social media companies, collectively known as NetChoice, argued that such laws violate their own free speech rights by forcing them to publish content against their will, comparing the move to the government telling newspapers what they can print.

Without such discretion and the ability to block or remove content or users, prioritize certain posts over others or include additional context, the companies said their websites would be overrun with spam, bullying, extremism and hate speech.

What is SB 7072, Social Media Platforms?

SB 7072, which passed along party lines, sought to protect First Amendment rights from social media platforms that "unfairly censor, shadow ban, deplatform, or apply post-prioritization algorithms to Florida candidates, Florida users, or Florida residents," according to the bill.

Under the law, social media platforms:

• Cannot willfully deplatform a candidate for office as long as they are a qualified Florida candidate, regardless of what they posted (with an exception for obscenity)

• Must provide specific, detailed standards for removing posts or deplatforming, shadowbanning, suspending or banning users and inform users of any changes

• Must notify in writing the user who posted or attempted to post the offensive material

• Must allow users to opt out of any algorithms used for prioritizing posts or shadow-banning and may not use such algorithms at all on content from qualified candidates for office

• Must allow deplatformed users at least 60 days to access or retrieve any content on their account

• May not take any action to "censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast," regardless of what they posted (with an exception for obscenity).

• Can be fined $250,000 per day for violations regarding candidates for statewide office and $25,000 a day for other offices

• Allows censored, shadowbanned or deplatformed users to sue for up to $100,000 in statutory damages per claim, plus actual damages, punitive damages, other forms of relief and attorney fees.

Companies that operate theme parks were specifically exempted from the definition of social media platforms. Most of the bill addresses contracts for companies convicted or held civilly liable for antitrust violations.

Tech companies sued, claiming the law blocked their First Amendment rights and harmed their efforts to moderate content. U.S. District Judge Robert Hinkle suspended it, saying to the state's lawyers during the initial hearing, “I won’t put you on the spot and ask you if you’ve ever dealt with a statute that was more poorly drafted.”

The Atlanta-based Eleventh Circuit partially agreed with the injunction in May 2022, leaving the moderation disclosure there as valid but otherwise leaving the injunction in place. "Put simply, with minor exceptions, the government can't tell a private person or entity what to say or how to say it," said Circuit Judge Kevin Newsom.

This article originally appeared on The Daytona Beach News-Journal: Supreme Court vacates social media law rulings from Florida, Texas