The Supremes Will Be Busy Forever

The men and women in black in DC have been dancing on the edge of a knife – or maybe a sword – lately trying to avoid making decisions. Instead, they sort of dance around things, make general comments and kick the can down the road. They are beginning to sound like politicians.

Case in point.

Texas and Florida passed bills a couple of years ago banning private companies (social media) from moderating content because the way they were moderating it did not align with the way the legislatures liked. The bills were a bit of a kitchen sink with all sorts of strange requirements. Unfortunately, that is pretty much unconstitutional and the Supreme Court basically agreed with that. But they didn’t create any clear guidelines for what is and what is not legal.

In part this is due to the fact the ages of the current justices range from 50 to 74. Not exactly the demographic of Internet users.

Because the lawyers in Florida and Texas were more politically motivated than anything else, the drafting of these laws was a mess.

While the decision in Moody vs. NetChoice was not definitive, it did lay down some guidelines:

• States cannot dictate and override private content moderation decisions
• Internet provides are more like newspapers than the telephone companies and should not be treated like common carriers as some states proposed.

Justice Kagan wrote, “a State may not interfere with private actors’ speech to advance its own vision of ideological balance…On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”

This seems to indicate that the first amendment is safe – at least for the moment.

While this is a rebuke to the states and to the Fifth Circuit particularly, decisions from whom the Supremes seem to overturn daily, this does not definitively resolve the issue.

The cases for both the fifth and eleventh circuits are remanded to conduct a proper analysis of the core first amendment issues given the bullets above. This likely means that this will be back in front of the Supremes in a year or two.

In a rare 9-0 decision, given the current politics, the court said that the states cannot replace the business decisions of private companies with their preferences.

The challenge is that there are a number of laws and a bunch of bills in the works trying to similarly override the decisions of private companies.

The good news is that this will generate a LOT of revenue for lawyers and law firms. Good, that is, if you are a lawyer. The bad news is that if you are a private company this likely won’t be definitively settled for many years.

Likely legislatures will try again and again to craft bills to restrict the decision making powers of private companies and those companies will continue to sue and the states will wind up spending millions of taxpayer dollars defending these laws. Note that these laws are pretty much exclusively being passed in Republican controlled states, who normally are for less regulation and pro business – not in this area. At some point voters may express their dislike of their states spending millions of taxpayer dollars this way, but all of this will take multiple years.

What is unknown is whether the fifth and eleventh circuits will deal with the rebuke from the Supremes and get a bit more sensible in their decisions. That, of course, won’t stop legislatures from doing their normal political thing.

Credit: Professor Eric Goldman, Associate Dean and Professor of Law at Santa Clara University School of Law If this subject is of interest to you, I recommend subscribing to his blog.

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