Capitol News

The U.S. Supreme Court is set to deliver a decision in a pair of cases that could help define the government’s role in regulating social media companies and their freedoms. The cases of NetChoice v. Paxton and Moody v. NetChoice could shape how speech is governed on the internet and social media for years to come.

Nancy Costello, a clinical professor of law at MSU’s College of Law, where she serves as the director for the First Amendment Clinic and the McLellan Online Free Speech Library, provides an overview of the cases and what they could mean for speech and social media.

NetChoice v. Paxton and Moody v. NetChoice involve challenges to laws in Florida and Texas that would regulate how and when social media companies can moderate their content and require companies to be transparent about these practices. NetChoice is a coalition of social media companies and internet platforms that challenged the laws, claiming they violate tech companies’ free speech rights. The laws were largely a reaction to X (formerly Twitter), Facebook, and YouTube suspending Donald Trump and removing content posted by conservative voices following the Jan. 6 attack on the nation’s capitol.

"The task of the court is difficult," said Costellois. "It must sort out what practices by social media companies are expressive conduct protected by the First Amendment."

Costello further elaborated: "For instance, is there a difference between removing or downranking a person’s post on social media based on its viewpoint versus delivering content using habit-forming design practices to maximize a user’s time spent on the platform? The social media companies argue that both these practices (and all others) are exercises of editorial discretion that are protected by the First Amendment."

"But," she added, "the states contend that given the sweeping breadth, size, and variety of social media platforms, they are more like utilities — common carriers — subject to greater government regulation."

"I believe there is a big difference in these two practices," Costello noted regarding how we view the relationship between social media and speech. "A decision to remove or flag a comment on a user’s social media feed based on its viewpoint is...protected by the First Amendment." In contrast, using algorithms to push customized content without consent "is not speech" but rather "a product design business practice."

"Harmful product designs can be regulated by the government to protect public health," she stated.

Complicating matters further in these cases is that "social media companies sued before the laws even took effect," making it challenging for courts to assess potential harm accurately.

"It means," Costello concluded, "the Supreme Court must decide based on mere speculation...Given these limitations, it is likely [they] will send [them] back with instructions." She emphasized that precise guidance from higher courts about what activities are protected under free speech would be essential moving forward.