Supreme Court Punts on Resolving Netchoice Cases but Signals Its Ready to Overturn Texas and Florida Laws

On the final day of the term, the Supreme Court issued its long-awaited decision in the social media cases Moody v. NetChoice LLC and NetChoice LLC v. Paxton. And the Court… sort of punted on the issue. To be sure, there is excellent language on the broad protections of the First Amendment for social media companies. But the Court was concerned the Florida and Texas laws at issue might be constitutional in some instances on websites that were not social media.  The Court, therefore, remanded the cases back to the Fifth and Eleventh Circuits for further analysis on the scope of the Texas and Florida laws.

The Netchoice majority rightly recognized that Florida and Texas laws are more sweeping than the sponsors suggest. The Court affirmed that when a website exerts editorial control over content, then the cases fall under the protections for speech (and what not to speak) under the First Amendment. That line of cases, most famously Miami Herald Co. v. Tornillo, holds that the government cannot compel newspapers to publish the views with whom the paper’s editors disagree (in that case, a politician demanded equal printing space when the newspaper opposed his campaign). Tornillo is now the starting point of the discussion of how much a state can commandeer the page of a website to host speech the owners do not want.

But the Netchoice decision left intact, at least in principle, a troublesome 1980 case, PruneYard Shopping Center v. Robins, which upheld a California law requiring shopping centers to allow political solicitation simply because it is a place where a lot of people gather—sometimes called a “modern town square.” Defenders of the Florida and Texas laws relied heavily on PruneYard: in the 1980s, people gathered at shopping malls, and today they gather on social media. The Court did not overturn PruneYard, but it did limit PruneYard’s reach to the facts of that case: a shopping mall that had expressly disclaimed having any view on political issues. The mall simply wanted to bar petitioners and other solicitations in the name of keeping the mall free and welcoming to all.

Perhaps a future iteration of this case will finally remove PruneYard from the landscape of bad First Amendment opinions. We certainly urged the Court to do so, and the concurrence by Justice Alito (joined by Justices Thomas and Gorsuch) notes that PruneYard will remain relevant in possible regulation of speech on the Internet unless and until PruneYard is overruled.

It's good news for the First Amendment that the majority cites Tornillo as the standard rule for such cases. But a case like PruneYard should be expressly overruled and their not doing so will continue to cause confusion. For now, the lower courts must sort out the scope of the Netchoice challenges and whether the Florida and Texas laws apply to more than social media websites. We expect this issue to return to the Supreme Court in the coming years.