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U.S. Supreme Court declines to rule whether social media feeds are free speech

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(The Center Square) – The U.S. Supreme Court declined to issue a ruling but unanimously vacated the judgments of and remanded a set of cases regarding social media moderation and algorithms back to federal appellate courts. The court also ordered lower courts to more closely examine the laws’ application beyond curated feeds and suggested they explore how the laws could still apply to other features, such as direct messaging.

Florida and Texas both passed laws limiting social media content moderation and algorithmic sorting — which the court says was in response to a feeling “feeds [were] skewed against politically conservative voices” — and requiring notification detailing exactly why any posts are in violation of content moderation rules. District courts, following suits by trade association NetChoice, issued injunctions against both, with the Eleventh Circuit Court upholding the injunction against Florida’s law, and the Fifth Circuit Court — which ruled social media companies are “common carriers” like mobile phone service providers that can’t discriminate — reversing the injunction against Texas’ law.

By remanding and vacating both the appellate courts’ decisions, the Supreme Court did not definitely rule on the matter, but suggested, especially with regard to the Fifth Circuit, how the lower courts should move forward this time around.

“This Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others,” wrote Justice Elena Kagan in the court’s opinion. “Contrary to what the Fifth Circuit thought, the current record indicates that the Texas law does regulate speech.”

The court then went on to say the Fifth and Eleventh Circuit Courts should more broadly consider First Amendment implications of Florida and Texas rules in social media beyond the content feeds, such as in direct messaging or determining the order in which online reviews are shown to consumers.

“Curating a feed and transmitting direct messages, one might think, involve different levels of editorial choice, so that the one creates an expressive product and the other does not,” wrote Kagan. “If so, regulation of those diverse activities could well fall on different sides of the constitutional line.”

This means lower courts could expand consumers’ speech protections to less-curated products such as direct messages, but free speech legal experts say it’s unlikely.

“Having attended the oral argument in the NetChoice cases, I think the court was more really just trying to explore how regulations would apply to different functions,” said Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression. “Parsing out direct messages where the platform doesn’t have any involvement in the message from others could be used as part of that argument, but I don’t think you can reach that conclusion just from that one off-hand remark from Kagan.”

The cases now go back to the Fifth and Eleventh District Courts for new rulings under the Supreme Court’s instructions.

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