If you’ve spent Monday morning following every case handed down by the Supreme Court, you’re probably experiencing a bit of whiplash.
The biggest news out of court on Monday, of course, was the sweeping ruling that former President Donald Trump effectively allowed the crime to be committed while in office. Indeed, under the decision of six Republican justices Trump v. United StatesIt is highly unlikely that a sitting president could order the military to kill his political rivals without facing any criminal consequences for doing so.
The Supreme Court handed it down just a few minutes ago Trump The decision, however, also hands down another case that confirms the First Amendment does not allow Republican-led legislatures to seize control of content published by media companies. In that decision, Moody v. netchoicewas 6-3, with three Republican justices who also held that the Republican Party leader was allowed to commit many crimes while he was in office, joining Justice Elena Kagan in the majority opinion.
So, on a day when the Supreme Court seems to have established that a sitting president can commit the most heinous crimes imaginable against anyone who dares to speak out against him, the same court — joined by three justices in both decisions — holds that the First Amendment still limits what content appears online. imposes certain limits on the government’s power to regulate.
Chief Justice John Roberts and Justice Brett Kavanaugh concurred in both decisions. Justice Amy Coney Barrett joined netchoice Full opinion, plus almost everything Trump the decision
It is impossible to understand the value system that would lead a justice to join both conclusions, but yet here we are. It is said that in the judgment of the court Dr netchoice It’s a victory for free speech, even if it comes on the same day as one of the most sensational decisions in the court’s history.
What is at stake? netchoice?
netchoice Two state laws are concerned, one from Florida and one from Texas, which seek to regulate what content should be published by major social media platforms such as Facebook, Twitter or YouTube. Both laws were enacted by Republican legislatures, and signed by Republican governors, with the intent of forcing these platforms to publish right-leaning content they would rather not publish.
As Texas Gov. Greg Abbott said before signing his state law, it was enacted to stop a “dangerous movement by social media companies to silence conservative views and ideas.”
The two laws, and the Texas law in particular, are extraordinarily broad. Texas, for example, prohibits major social media companies from “regulating content based on ․View of the user or other person” or “the views expressed in the user’s expression or other person’s expression”.
This is such a sweeping restriction on content moderation that it would prohibit companies like YouTube or Twitter from removing content that is offensive, promotes violence, or seeks to overthrow the United States government. In fact, Kagan’s opinion included a bullet-pointed list of eight things that Texas law would not allow the platforms to moderate, including posts. “Support Nazi ideology” or “Encourage teenagers to commit suicide and self-harm.”
In any case, Kagan makes clear that this kind of government takeover of social media moderation is not permissible, and she has repeatedly chided the far-right US Court of Appeals for the Fifth Circuit, which upheld the Texas law.
As Kagan wrote, the First Amendment does not allow the government to compel platforms to “carry and disseminate user speech that they would rather suppress or curtail.” He also cited several previous Supreme Court decisions that support this proposition, including its “seminal” decision. Miami Herald Publishing Co. v. screw (1974), which held that a newspaper has ultimate control over “the choice of material to go into it”.
Nothing in Kagan’s opinion breaks new legal ground — it is well established that the government cannot seize editorial control over the media, which should be obvious to anyone who cares the least about free speech and the freedom of the press. But the court’s reaffirmation of this simple and once uncontested legal principle is still jarring on the same day the court handed down a blueprint for Trump’s dictatorship in its presidential immunity case.
It’s also worth noting that Kagan’s decision is technically a victory for Texas and Florida, although on such a narrow basis that the victory doesn’t matter.
What is Kagan’s? netchoice The decision actually says
Its specific holdings netchoice The opinion introduces a distinction between a “facial” challenge to a state law and a more limited “applicability” challenge.
A face-to-face challenge, brought by social media platforms against the unconstitutional laws in Texas and Florida, alleges that the law is unconstitutional in all its application and should effectively be struck off the books entirely. This contrasts with an “applicability” challenge, which only alleges that a statute is unconstitutional when it is applied against a specific plaintiff in a specific context.
Face challenges, but are notoriously difficult to conquer. Generally, as Kagan writes, a plaintiff must show that “There is no set of circumstances under which [law] will be valid“Such cases are somewhat easier to win in the First Amendment context, though.
While Kagan’s netchoice The opinion explains why the Texas and Florida laws are unconstitutional as they apply to social media companies’ core product — a curated list of content created by social media users — because both laws are so broadly drafted that they could also apply to less core features on websites like Facebook or Twitter, such as ” Direct Messaging or Event Management.”
Kagan faulted the lower courts for failing to separately evaluate whether the statutes could constitutionally be applied to these non-core features, and sent the case back to those lower courts to do so. That said, most of his opinion is pretty clear that the laws can’t constitutionally be applied to core features like Facebook’s newsfeed or YouTube’s homepage.
So, on the same day the Supreme Court holds presidents above the law, it also appears that lesser government officials still must abide by the First Amendment.
