By: Kevin Vu

Last year, in one of the oral arguments for cases about Section 230 of the Communications Decency Act (Section 230), Justice Kagan opined that the United States Supreme Court is not comprised of “the nine greatest experts on the internet.”  Despite that observation, and eventually siding with the government in those Section 230 cases, the Court granted certiorari to four cases this year that again concern the regulation of social media.  Two of those cases, Moody, et al. v. NetChoice, LLC, et al. and NetChoice, LLC et al. v. Paxton, are concerning newly passed state laws in Florida and Texas that purport to regulate social media companies.  Additionally, the court recently heard oral arguments on two other cases, O’Connor Ratcliff v. Garnier and Lindke v. Freede, concerning whether elected officials can block members of the public on social media.  These cases—and Justice Kagan’s observations—beg the question of why the Court would be inclined to answer questions about the internet and social media companies, despite being self-admitted non-experts. 

1. The current cases.

To provide some background, the Court is considering four cases this term.  The NetChoice cases concern whether Florida and Texas laws can prohibit social media companies from censoring individuals, or refusing to give a platform to political candidates.  But both laws are slightly different; the Florida law would require social media platforms to provide a rationale for removing content or censoring individuals on their platforms.  In contrast, the Texas law would bar large platforms, like Facebook, from engaging in “viewpoint discrimination.”  The Court is considering whether those state laws violate a company’s First Amendment rights.  

The other two cases, O’Connor Ratcliffe and Lindke, concern whether an elected official blocking users on social media would amount to a First Amendment violation of the user’s rights.  The elected officials cases have been presented to the Court before.  During the 2020 presidential election, then-President Trump blocked users on his Twitter account, but the Court dismissed Trump’s case as moot when President Trump lost the election.  

2. Possible reasons the Court is considering social media cases.

Several reasons could explain the Court’s consideration of the NetChoice and elected officials’ cases.  First, unlike the Section 230 cases, the cases in this term implicate First Amendment rights.  The Section 230 cases concerned whether the plaintiffs could hold social media companies liable for content users posted on their websites, and did not present any such First Amendment issues.  As noted above, the NetChoice and elected officials cases present First Amendment concerns, and the Section 230 cases in contrast did not present those questions.  Because First Amendment questions have well-established case law and principles to answer the question presented, the Court may be more interested in wading into how its precedent affects these giant social media companies, especially as other branches of government have failed to address those companies.  

As social media websites continue to be leveraged to spread misinformation, and distrust in those platforms grows, the Court could be seeing an opportunity to weigh in on questions the other branches of the federal government have failed to address.  Despite bipartisan efforts to introduce bills regulating social media, those efforts have languished especially as uncertainty looms over whether government shutdowns are imminent.  But Congress’s inaction is not the only sign that the Court seems to want to consider cases regarding social media companies and the Internet.  This past month, the Court lifted a lower court’s restriction on President Biden’s administration.  Biden had attempted to alert social media companies to content that violated the company’s policies, and several state Attorneys General and social media users sued the Biden administration.  Those parties argued that Biden suppressed disfavored political speech, such as claims of election fraud, and information about the COVID-19 pandemic.  In allowing the Biden administration to contact social media companies in that way, the Court could be signaling its interest in cases involving social media companies.  

Finally, the Court’s public rationale for granting review weighs in favor of taking these social media cases.   The Court ordinarily only grants review to cases that could have “national significance, might harmonize conflicting decisions in the federal Circuit courts,” or if the case “could have precedential value.”  These social media cases generally meet all three of the criteria.  First, these are the kinds of cases that have national significance:  Can states regulate the speech of giant social media companies?  If states can regulate these national and international companies, what would happen if separate states impose different restrictions or requirements on those companies?  And, can elected officials restrict a user’s access to their social media accounts?  Those issues will have a profound impact on how social media companies regulate their multi-million user platforms.  

Second, with regards to the NetChoice cases, there are two conflicting decisions in the federal courts.  The Florida law was struck down by the Eleventh Circuit, while the Texas law was upheld by the Fifth Circuit.  Because those laws are similar enough in nature, the Court ultimately needs to resolve the NetChoice cases to determine whether a state can instruct social media companies on how to regulate, or not regulate, their content and users.  

And third, these cases are likely to have a profound effect on state policy and legislative decisions that have national effect.  For example, last year the Court held that California could forbid the sale of pork produced in a cruel manner.  That pork case has similar implications as the NetChoice cases; whether a state can essentially regulate an entire industry.  All of these cases will also provide precedential value:  the Court has been presented with questions of first impression as to how the First Amendment applies in various social media contexts.  The Court’s decisions will have a profound effect on how social media companies are run. 

Ultimately, these are the kinds of cases and questions that the Court must answer for prudential reasons.  As the public grows skeptical of social media companies, decisive action needs to be taken.  The lack of action from the other branches of federal government, along with the actions taken by the state governments in some of these cases, presents the following question: what branch of government should be taking action?