As we said last year, the U.S. Supreme Court has taken an unusually active interest in internet free speech issues over the past couple years.
All five pending cases at the end of last year, covering three issues, were decided this year, with varying degrees of First Amendment guidance for internet users and online platforms. We posted some takeaways from these recent cases.
We additionally filed an amicus brief in a new case before the Supreme Court challenging the Texas age verification law.
Public Officials Censoring Comments on Government Social Media Pages
Cases: O’Connor-Ratcliff v. Garnier and Lindke v. Freed – DECIDED
The Supreme Court considered a pair of cases related to whether government officials who use social media may block individuals or delete their comments because the government disagrees with their views. The threshold question in these cases was what test must be used to determine whether a government official’s social media page is largely private and therefore not subject to First Amendment limitations, or is largely used for governmental purposes and thus subject to the prohibition on viewpoint discrimination and potentially other speech restrictions.
The Supreme Court crafted a two-part fact-intensive test to determine if a government official’s speech on social media counts as “state action” under the First Amendment. The test includes two required elements: 1) the official “possessed actual authority to speak” on the government’s behalf, and 2) the official “purported to exercise that authority when he spoke on social media.” As we explained, the court’s opinion isn’t as generous to internet users as we asked for in our amicus brief, but it does provide guidance to individuals seeking to vindicate their free speech rights against government officials who delete their comments or block them outright.
Following the Supreme Court’s decision, the Lindke case was remanded back to the Sixth Circuit. We filed an amicus brief in the Sixth Circuit to guide the appellate court in applying the new test. The court then issued an opinion in which it remanded the case back to the district court to allow the plaintiff to conduct additional factual development in light of the Supreme Court’s new state action test. The Sixth Circuit also importantly held in relation to the first element that “a grant of actual authority to speak on the state’s behalf need not mention social media as the method of speaking,” which we had argued in our amicus brief.
Government Mandates for Platforms to Carry Certain Online Speech
Cases: NetChoice v. Paxton and Moody v. NetChoice – DECIDED
The Supreme Court considered whether laws in Florida and Texas violated the First Amendment because they allow those states to dictate when social media sites may not apply standard editorial practices to user posts. As we argued in our amicus brief urging the court to strike down both laws, allowing social media sites to be free from government interference in their content moderation ultimately benefits internet users. When platforms have First Amendment rights to curate the user-generated content they publish, they can create distinct forums that accommodate diverse viewpoints, interests, and beliefs.
In a win for free speech, the Supreme Court held that social media platforms have a First Amendment right to curate the third-party speech they select for and recommend to their users, and the government’s ability to dictate those processes is extremely limited. However, the court declined to strike down either law—instead it sent both cases back to the lower courts to determine whether each law could be wholly invalidated rather than challenged only with respect to specific applications of each law to specific functions. The court also made it clear that laws that do not target the editorial process, such as competition laws, would not be subject to the same rigorous First Amendment standards, a position EFF has consistently urged.
Government Coercion in Social Media Content Moderation
Case: Murthy v. Missouri – DECIDED
The Supreme Court considered the limits on government involvement in social media platforms’ enforcement of their policies. The First Amendment prohibits the government from directly or indirectly forcing a publisher to censor another’s speech (often called “jawboning”). But the court had not previously applied this principle to government communications with social media sites about user posts. In our amicus brief, we urged the court to recognize that there are both circumstances where government involvement in platforms’ policy enforcement decisions is permissible and those where it is impermissible.
Unfortunately, the Supreme Court did not answer the important First Amendment question before it—how does one distinguish permissible from impermissible government communications with social media platforms about the speech they publish? Rather, it dismissed the cases on “standing” because none of the plaintiffs had presented sufficient facts to show that the government did in the past or would in the future coerce a social media platform to take down, deamplify, or otherwise obscure any of the plaintiffs’ specific social media posts. Thus, while the Supreme Court did not tell us more about coercion, it did remind us that it is very hard to win lawsuits alleging coercion.
However, we do know a little more about the line between permissible government persuasion and impermissible coercion from a different jawboning case, outside the social media context, that the Supreme Court also decided this year: NRA v. Vullo. In that case, the National Rifle Association alleged that the New York state agency that oversees the insurance industry threatened insurance companies with enforcement actions if they continued to offer coverage to the NRA. The Supreme Court endorsed a multi-factored test that many of the lower courts had adopted to answer the ultimate question in jawboning cases: did the plaintiff “plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech?” Those factors are: 1) word choice and tone, 2) the existence of regulatory authority (that is, the ability of the government speaker to actually carry out the threat), 3) whether the speech was perceived as a threat, and 4) whether the speech refers to adverse consequences.
Some Takeaways From These Three Sets of Cases
The O’Connor-Ratcliffe and Lindke cases about social media blocking looked at the government’s role as a social media user. The NetChoice cases about content moderation looked at government’s role as a regulator of social media platforms. And the Murthy case about jawboning looked at the government’s mixed role as a regulator and user.
Three key takeaways emerged from these three sets of cases (across five total cases):
First, internet users have a First Amendment right to speak on social media—whether by posting or commenting—and that right may be infringed when the government seeks to interfere with content moderation, but it will not be infringed by the independent decisions of the platforms themselves.
Second, the Supreme Court recognized that social media platforms routinely moderate users’ speech: they decide which posts each user sees and when and how they see it, they decide to amplify and recommend some posts and obscure others, and they are often guided in this process by their own community standards or similar editorial policies. The court moved beyond the idea that content moderation is largely passive and indifferent.
Third, the cases confirm that traditional First Amendment rules apply to social media. Thus, when government controls the comments section of a social media page, it has the same First Amendment obligations to those who wish to speak in those spaces as it does in offline spaces it controls, such as parks, public auditoriums, or city council meetings. And online platforms that edit and curate user speech according to their editorial standards have the same First Amendment rights as others who express themselves by selecting the speech of others, including art galleries, booksellers, newsstands, parade organizers, and editorial page editors.
Government-Mandated Age Verification
Case: Free Speech Coalition v. Paxton – PENDING
Last but not least, we filed an amicus brief urging the Supreme Court to strike down HB 1181, a Texas law that unconstitutionally restricts adults’ access to sexual content online by requiring them to verify their age (see our Year in Review post on age verification). Under HB 1181, passed in 2023, any website that Texas decides is composed of one-third or more of “sexual material harmful to minors” must collect age-verifying personal information from all visitors. We argued that the law places undue burdens on adults seeking to access lawful online speech. First, the law forces adults to submit personal information over the internet to access entire websites, not just specific sexual materials. Second, compliance with the law requires websites to retain this information, exposing their users to a variety of anonymity, privacy, and security risks not present when briefly flashing an ID card to a cashier, for example. Third, while sharing many of the same burdens as document-based age verification, newer technologies like “age estimation” introduce their own problems—and are unlikely to satisfy the requirements of HB 1181 anyway. The court’s decision could have major consequences for the freedom of adults to safely and anonymously access protected speech online.
This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2024.
This post was originally published on here
