2024-07-01T22:02:43.643ZHappy Tuesday! I’m celebrating my independence from waking up every morning to see if the Supreme Court has finally ruled in the NetChoice cases. Send news tips and fireworks emojis to: will.oremus@washpost.com.Supreme Court says content moderation is speechJustice Elena Kagan wrote a majority opinion that rebukes the Republican-led push to restrict how social media companies moderate users' posts and feeds. (Sarah L. Voisin/The Washington Post)At first glance, Monday’s Supreme Court’s ruling on the Texas and Florida social media laws might look like a punt. Declining to rule on the cases’ merits, all nine justices agreed to send them back to the lower courts for further review.Their reasons were complicated. The laws, which restrict how online platforms can moderate users’ posts, seemed to be written with social media giants like Facebook and YouTube in mind. Yet the justices found their language vague enough that it could conceivably apply to a host of other online platforms, like Uber, Etsy or Venmo, that aren’t primarily platforms for speech.The tech industry’s trade group, NetChoice, had sought a sweeping ruling striking down the laws in their entirety. But because the lower courts hadn’t considered all the different potential applications, the Supreme Court decided it didn’t have enough information to do that. Hence the punt.Yet behind the legalistic ruling lies a forceful majority opinion establishing online content moderation as speech.Writing for the majority, Justice Elena Kagan said social media sites such as Facebook and YouTube are engaged in expression of their own when they curate and moderate the posts in users’ feeds, making that activity eligible for First Amendment protections. That’s true even if they allow most posts and restrict only a few categories of content, she went on. And it’s true regardless of whether they take posts down manually or use algorithms to prioritize some types of content over others.Furthermore, Kagan wrote, states like Texas and Florida can’t interfere with those rights just because they find the resulting speech unbalanced or unfair. That means that if Facebook or YouTube decide they don’t want to host or prioritize, say, anti-vaccine disinformation, the government can’t force them to do so.A state “may not interfere with private actors’ speech to advance its own vision of ideological balance,” she wrote.That’s bad news for the conservative project to reframe content moderation as a form of “censorship.”The majority opinion, which five justices signed on to in full and a sixth in part, doesn’t dictate the cases’ outcome. Three conservative justices — Samuel Alito, Neil M. Gorsuch and Clarence Thomas — criticized the majority opinion in their own concurrences, even as they agreed to send the cases back to lower courts.Still, it sends a clear message to lower courts around the country, including those hearing the Texas and Florida cases, said Kate Ruane, director of the Free Expression Project at the nonprofit Center for Democracy and Technology.“Any government that wants to treat platforms’ news feeds as common carriers is going to have a really hard time doing that going forward,” Ruane said.While the Texas and Florida laws are on shaky ground, the ruling leaves open the door to other forms of social media regulation.The majority opinion makes clear that forcing social media companies to carry certain posts is unlikely to be constitutional. But in declining to throw out the laws altogether, the court signaled that other aspects of those measures might be less problematic.For instance, the court suggested a lower level of First Amendment scrutiny might apply to transparency provisions in the Texas and Florida laws that would require online platforms to notify users when they remove a post and explain why, said Scott Wilkens, senior counsel at the Knight First Amendment Institute.The court also acknowledged that governments could have other, more legitimate interests in regulating social media than to correct perceived biases in content moderation policies. While the justices didn’t get specific, backers of legislation aimed at children’s online safety might take heart. Still, Kagan’s opinion indicates that any law that implicates online platforms’ news feeds or recommendations will have to clear First Amendment scrutiny.The ruling may not have been quite the blockbuster that either side wanted. But it was far from the nothingburger it might have first seemed.“This decision is incredibly important in laying out the First Amendment principles that apply to platform content moderation,” Wilkens said. “Those principles were fundamentally lacking and will have enormous influence going forward.”Government scannerSupreme Court orders second look at Texas and Florida social media laws (Will Oremus, Cat Zakrzewski and Justin Jouvenal)China plans broader push to develop tech like Musk’s Neuralink (Bloomberg News)Inside the industryYouTube now lets y