Has the US Supreme Court Made It Harder to Regulate Social Media — or the Opposite?

By: Robert Diab (Center for International Governance Innovation)

In early July, the U.S. Supreme Court issued its decision on two cases challenging Florida and Texas laws that prevent social media companies from censoring content based on viewpoint. While the Court remanded the cases for further fact-finding, it made significant statements about how the First Amendment applies to social media algorithms, setting the stage for future regulations that could impact the platforms where most major social media companies are based.

The initial reactions to the Supreme Court’s rulings in Moody v. NetChoice and NetChoice v. Paxton have been so varied that they suggest some confusion over the core issues. Some argue that the Court has overextended the First Amendment by ruling that social media algorithms are a form of protected expression, raising concerns that any law targeting the function of algorithms on large platforms could be struck down, making meaningful regulation of social media nearly impossible. This puts numerous proposed bills, such as those targeting “addictive algorithms” or requiring platforms to offer more user control over content feeds (like the Filter Bubble Transparency Act), at risk. Has the Supreme Court, in effect, created a strong legal shield around social media platforms and their engagement-driven business models?

These concerns stem from the majority’s remarks about the Fifth Circuit’s decision in one of the companion cases, NetChoice v. Paxton. The Court of Appeals had essentially ruled that because algorithms powering Facebook’s News Feed and YouTube’s recommendation engine are automated, they are not expressive. However, a majority of justices suggested otherwise, asserting that because these algorithms reflect a content moderation policy, they are indeed expressive.

Yet, the Supreme Court’s decision is more nuanced than many early commentators have acknowledged. Five justices indicated that in some situations, social media algorithms might not be expressive or may not warrant strong First Amendment protections. This insight provides a glimpse into the boundaries that could shape future constitutional challenges to social media regulation…

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