Supreme Court sidesteps major social media issues

The Supreme Court sidestepped major questions involving the internet in its last term, even as it weighed issues with the potential to be highly consequential for online speech and social media rights.

The court’s docket included a handful of cases that raised questions about efforts to curb misinformation online and companies’ rights to moderate content on their own platforms, each standing to transform how social media is regulated by the government and consumed by users.

Instead, the court generally stuck to a modest note.

“This term had the potential to be a referendum on the relationship between the First Amendment and social media, and the cases that went up to the court asked at a fundamental level what role, if any, the government could have in regulating social media,” said Alex Abdo, litigation director of the Knight First Amendment Institute.

 “Thankfully, the court treaded pretty carefully,” he said. 

Earlier this year, the Supreme Court ruled that public officials can sometimes be sued for blocking their critics on social media, while still affirming that those officials “have private lives and their own constitutional rights.” 

In a case involving the Biden administration, the justices rejected challenges to federal officials’ communications with social media companies aimed at combating misinformation online.

They determined that the Republican attorneys general and private parties who claimed a “campaign of censorship” against them online did not have legal standing to bring the case, skirting the major First Amendment question at the heart of the challenge for a procedural solution.  

And on the final day of its busy opinion season, the high court wiped lower court rulings on two state laws aimed at barring social media companies from banning users based on their political views. The decision kicked a major First Amendment challenge down the road but seemed to preserve social media companies’ right to make editorial decisions.  

“[The term] didn't fully resolve all of the merits of the questions presented. But by and large, I'd say that this term was a huge positive for the First Amendment,” said Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression.

“And the court's reluctance to give final answers in all of the cases was, to me, more of an indication of the court's concern for moving slowly and not precipitously coming up with the wrong answers.” 

The justices have never purported to be experts on the internet. During an argument last term as they grappled with the scope of a liability shield for internet companies, Justice Elena Kagan joked that she and her colleagues are not the “nine greatest experts on the internet.” 

“I mean, we’re a court,” she said at the time. “We really don’t know about these things." 

As more issues involving social media landed at the Supreme Court this term, the justices displayed that same “sense of modesty” in each of their decisions, Corn-Revere said.

“Basically, what the court did was hold the line. Because a lot of novel interpretations of [the] First Amendment were presented to it,” he said, adding that in each case, the justices reaffirmed “traditional principles” that the First Amendment protects citizens and private companies from the government — not the other way around.  

Despite steering clear of the big questions this term, the justices tipped their hands at how future cases involving internet speech and the rights of social media companies could play out.  

For example, the justices appeared inclined to recognize that social media news feeds bear more similarities to traditional media, like newspapers, as opposed to common carriers, like the companies that operate telephone systems and railroads — a framing that could vastly impact how social media companies are regulated by the government, said Samir Jain, vice president of policy at the Center for Democracy and Technology. 

"It's that frame through which they're going to be analyzing the First Amendment issues here, as opposed to suggestions by some that social media companies really should be treated as common carriers or looked at as not making editorial decisions,” Jain said.  

The high court also seemed to open the door for new questions that could form the basis for future challenges — particularly in relation to artificial intelligence (AI).  

Justices Samuel Alito and Amy Coney Barrett both raised questions about whether algorithms used by social media companies to moderate content qualified as actual editorial decisionmaking, or something else, in concurring opinions for the cases involving laws in Texas and Florida that were challenged by the tech industry group NetChoice. 

“[The majority] unreflectively assumes the truth of NetChoice’s unsupported assertion that social-media platforms — which use secret algorithms to review and moderate an almost unimaginable quantity of data today — are just as expressive as the newspaper editors who marked up typescripts in blue pencil 50 years ago,” Alito contended.  

Jain said it's apparent that the majority of justices recognize that, in many cases, algorithms are “simply implementing human choice,” therefore maintaining First Amendment protections. But as Alito and Barrett probed, that could change if an AI algorithm is the “one making the choices,” he said.  

Though technology will continue to advance, presenting new challenges to the court, the Supreme Court’s latest term demonstrated that the justices' knowledge base on matters involving the internet has grown, experts agreed. 

“I think there is a greater appreciation and understanding of how these online services work,” Jain said. “I don't think the justices would claim to [be] experts, necessarily, still. But I think they certainly have a much better understanding today than they did two years ago.”