Page 3: The Supreme Court's instructions

Contents

The Supreme Court judges consider it necessary to make more precise statements to which the lower courts must adhere. "The first step in a proper analysis (of a challenge to the laws themselves) is to determine the scope of the laws," the SCOTUS explains the homework assignment, "Which activities of which actors do the laws prohibit or regulate?"

In the case of social networks, it is not only about the censorship of public postings discussed in the proceedings, but also about any effects on livestreams and non-public messages between users. In addition to social networks, the impact of the law on email (spam) filters, reviews in online stores, online money transfers between friends or ride-hailing platforms such as Uber and Lyft must also be investigated. These are just examples, emphasizes the SCOTUS, especially as there are constantly new online applications that could be covered.

Only then will it be necessary to examine which of these effects violate freedom of speech. The laws also contain provisions according to which online operators must provide an individual justification each time they block a post, add a comment, do not pay out a financial reward or do not highlight a post. Such a requirement could be unconstitutional because it is too burdensome, which would also have to be raised by the lower courts.

Lesson for the Fifth Circuit

Specifically to the Fifth Circuit Court of Appeals, the Supreme Court justices provide a detailed lesson on free speech. They refer to several earlier decisions, according to which private operators of public forums have the right to decide what is reproduced there and what is not. Accordingly, newspapers cannot be forced to present the opinion of a certain politician, cable network operators cannot be obliged to broadcast certain TV channels, and organizers of parades are not obliged to admit homosexual participants.

Accordingly, operators of online services are also allowed to decide what they display and how, even if the contributions themselves come from third parties. This is because these selection decisions are in themselves an expression of opinion, even if only very few posts are blocked. The operator then expresses which content it rejects. Texas' argument of wanting to better balance the opinions disseminated in public forums could perhaps be achieved through competition law, but the state could not force private individuals to disseminate certain statements more frequently or less frequently: "Texas is not likely to succeed in enforcing its law against the platforms' (...) content-moderation (...)".

The Fifth Circuit was once known for groundbreaking civil rights decisions, but it now has a reputation for being particularly Republican ideologized. The Supreme Court, itself Republican-dominated, has recently overturned an unusual number of decisions from the Fifth Circuit, and on Monday another one was added.

The cases before the US Supreme Court are Moody v Netchoice (case no. 22-277 regarding Florida) and Netchoice v Paxton (case no. 22-555 regarding Texas). All nine Supreme Court judges support the referral back to the lower courts. However, three of the judges give partially divergent reasons.

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