In a critically important decision today, the United States Supreme Court reaffirmed the strong conclusion that website operators have a constitutional right to moderate content posted on their sites. Although the primary issue that resolved the case turned on questions about the type of legal challenge that was brought, the five Justices in the majority—joined by one concurring Justice—made clear that governments cannot force online websites to carry content posted by users that they do not want to carry.
All nine Justices agreed that both of the cases—challenging the Texas and Florida laws—should be returned back to the lower courts for further analysis focused on the specific type of legal challenge that the industry plaintiffs brought.
As we noted in our post about filing an amicus brief in this case, content moderation is critical to building strong online communities and providing a positive user experience online. It is a vital part of what makes the Internet such a powerful tool for communication and collaboration. Without content moderation, online spaces for conversation and debate would be filled with off-topic posts, harassing comments, threats, and spam.
In the decision authored by Justice Kagan, the Court indicated that in both the Florida and Texas cases, the Circuit Courts had not performed the required analysis on where the First Amendment applied to the charges. The Court also provided strong guidance to the lower courts about where specifically the First Amendment applied.
In its guidance to the lower courts, the Court majority essentially held that the right to moderate user content is strongly protected, even when that user content is compiled into a “news feed” or something similar. In the Court’s words:
First, the First Amendment offers protection when an entity engaged in compiling and curating others’ speech into an expressive product of its own is directed to accommodate messages it would prefer to exclude. Second, none of that changes just because a compiler includes most items and excludes just a few. It “is enough” for the compiler to exclude the handful of messages it most “disfavor[s].” Third, the government cannot get its way just by asserting an interest in better balancing the marketplace of ideas. In case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm.
The Court further touches on the principal argument of these laws that they are needed to balance different viewpoints:
…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.
Now the cases go back to the lower courts where the Florida and Texas laws will be dissected and analyzed in great detail. We hope that as the analysis happens over the months ahead, the lower courts will respect the rights of website operators to moderate content on their sites.