US Supreme Court Ruling on NetChoice Cases: What Does it Mean for Wikipedia?
This blog post was first published in Diff, a Wikimedia community blog, on 23 July, 2024.
In 2021, a trade association called NetChoice sued the US states of Florida and Texas, asking courts to block laws aimed at social media from taking effect. Those laws could impact Wikipedia as well, by creating liability for the removal of false or inaccurate material expressing a political viewpoint. The cases rose through the US court system and were heard by the US Supreme Court in February 2024. In July 2024, the Court issued its decision: the Court makes no immediate change to the law, and its opinion contains some good language about content moderation that may be useful for the Foundation in future legal arguments. However, as the cases are instructed to return to the lower courts, the long-term implications of the decision remain to be seen.
Written by the Wikimedia Foundation’s: Stan Adams, Lead Public Policy Specialist for North America; and, Leighanna Mixter, Senior Legal Manager
In 2021, the states of Texas and Florida in the United States (US) enacted laws designed to restrict social media platforms’ ability to enforce their own content policies. This was a response to high-profile content moderation decisions, which the states alleged constituted “censorship” by large social media platforms of some users’ viewpoints. NetChoice, a trade association representing large social media platforms and other tech companies, immediately sued to block these laws from taking effect by means of two lawsuits: NetChoice, LLC v. Paxton (.pdf file) in Texas, and Moody v. NetChoice, LLC (.pdf file) in Florida.
NetChoice claimed these state laws would violate the First Amendment rights of its member companies by forcing them to host speech with which they disagree. Two years and several appeals later, the US Supreme Court agreed to hear these challenges. Rather than answer the constitutional questions, the Court decided this month, July 2024, that the lower courts had not done their jobs correctly. It sent the cases back with instructions to try again — essentially pressing the “reset” button on an expensive multiyear legal process.
Background: What the cases are about and why we filed a “friend-of-the-court” or amicus brief
The apparent question at the core of these cases was whether laws that force private companies to host speech violate the constitutional rights of those companies. Both the Texas and Florida laws were written in a way that made it unclear whether their enforcement would apply to platforms like Wikipedia — for instance, by demanding the removal of inaccurate or unverifiable information about a political candidate. The enforcement of either law against a Wikipedia volunteer or the Wikimedia Foundation could disrupt Wikimedia communities’ decision-making processes and damage the quality and reliability of the content on Wikipedia and other Wikimedia projects.
The Foundation filed an amicus brief (.pdf file) to help the Supreme Court understand our concerns: laws that restrict community-led content moderation would infringe the First Amendment rights of Wikipedia volunteers and could damage the quality and reliability of Wikipedia by forcing them to include non-encyclopedic content.
In its ruling, the Supreme Court has reframed the central question of the cases to be about the appropriate judicial analysis when the constitutionality of a law is challenged “on its face” rather than “as applied” to a specific actor — that is to say, it is about challenging a law by arguing that it is always unconstitutional in contrast to arguing that a specific application of it is unconstitutional. Below we explain what that means.
What the Court’s opinion says and its meaning
The Court’s opinion was lengthy, including a majority decision plus four concurrences — opinions mostly agreeing with the majority decision. A few major themes emerged throughout the opinion: the importance of an “on its face” or facial versus “as-applied” challenge; the difficulties of challenging broadly-written laws; and a recognition that internet regulation will affect different websites and applications to different extents.
The way you challenge laws matters
As explained above, in these two cases NetChoice brought forward what the Supreme Court describes as “facial” challenges, asking courts to block the laws before they took effect and claiming that the laws would be unconstitutional if enforced against any of NetChoice’s members. State legislatures and the district courts understood that these laws were designed to punish the three largest social media platforms in 2020 (that is to say, Facebook, Twitter, and YouTube) for actions taken to limit the former US president’s use of his accounts on those platforms. The District Courts in Texas and Florida and, on appeal, the federal Courts of Appeals for the Fifth and Eleventh Circuits, all treated these challenges accordingly. In legal terms, they approached the constitutional questions “as-applied” to Facebook et al.
The Supreme Court rejected this approach. In the Court’s opinion, the lower courts failed to correctly treat these as facial challenges, which require the lower courts to first determine the scope of all possible applications of the laws: could they apply to online platforms like Etsy, Uber, Venmo, and/or Gmail? The lower courts should have then determined whether a substantial portion of those possible applications would have been unconstitutional. Or, as US Supreme Court Justice Kagan instructs: “[A] court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other.”
Only time will tell how the Fifth and Eleventh Circuit Courts will respond to the ruling, but these cases could have long-term implications for free expression, future legislative proposals, and future constitutional challenges to enacted laws.
Challenging broadly written laws may be more difficult
One of the potential impacts of the Court’s ruling in the NetChoice cases is that it could be more difficult to successfully challenge laws that are broadly written, such as laws that could apply to many different kinds of services and/or actions. The Texas and Florida state laws at issue here both used very broad definitions of “social media,” and restricted a wide range of content moderation methods used in different ways by different platforms. We argued in our amicus brief that the laws are written so broadly that they could potentially be applied to volunteer-run projects like Wikipedia. Even the lawyers responsible for defending the laws before the Court were unable to say to whom the laws apply or what the laws would require a platform to do. This became a stumbling block for the case. When a law is written broadly, determining that “full set of applications” — and evaluating them as Justice Kagan described — becomes more difficult and may become practically impossible.
The Court’s Justices expressed concerns about striking down laws that could have some constitutional applications, but the discussion in both cases had only addressed how the laws might impact a few social media platforms. Moving forward, US state or national legislatures could take advantage of this ruling by drafting laws broadly enough so that no individual parties could successfully challenge the entire law. Additionally, courts may be less willing to hear “facial” challenges, limiting their consideration to laws “as-applied” to individual parties. Litigation costs to challenge poorly written laws will increase, and more plaintiffs will be needed to take down unconstitutional laws. Over time, this could mean that more constitutionally questionable laws remain in effect longer. This would not be an ideal outcome because legal uncertainty can have chilling effects on freedom of expression.
The Court understands that there’s more to the internet than Facebook and YouTube
One positive element of the Court’s decision is an acknowledgment that “the internet” is made of more than just a handful of large social media platforms, and also that attempts to regulate technology giants may sweep in many other kinds of apps and/or websites as well. To quote Justice Kagan: “The online world is variegated and complex, encompassing an ever-growing number of apps, services, functionalities, and methods for communication and connection.” One of the concurring opinions even included citations of our amicus brief (.pdf file; see pages 68 and 85), a specific acknowledgement by the Court that Wikipedia is among the websites that could suffer unexpected consequences from laws like the ones at issue in this case.
What it means for the Wikimedia Foundation and projects
The Court’s decision in the NetChoice cases is good enough for now: there is no immediate change to the law, and it contains some good quotes about content moderation that may be useful for the Foundation in future legal arguments. However, the long-term implications of the decision remain to be seen.
No change for now
The Court’s ruling sends the cases back to the Fifth and Eleventh Circuit Courts, and the Texas and Florida laws are still on hold, for now. However, the preliminary injunctions blocking these laws from taking effect may not last forever. We will be sure to monitor the status of these state laws and provide updates as the lower courts take action, especially if either state’s laws are allowed to go into effect.
Good language on content moderation could help the Wikimedia projects in the future
The majority opinion for the NetChoice cases had one clear mandate: The lower courts must redo their approach to analyzing the legal challenges brought by NetChoice. However, five Justices agreed to offer additional guidance on how lower courts should address the First Amendment questions at the heart of these cases. In general, these Justices (i.e., Kagan, Roberts, Sotomayor, Kavanaugh, and Barrett) supported the idea that the First Amendment protects acts involving “editorial discretion,” including all of the ways Wikipedia volunteer editors contribute to and maintain Wikipedia’s encyclopedic content.
The majority opinion clearly opposed the notion that US state or federal governments can force private companies to host speech from any political viewpoint, acknowledging that online platforms can and do curate the content on their websites as they see fit. Overall, the majority opinion indicated that the Texas and Florida laws would likely run afoul of the US Constitution in those contexts.
Some uncertainty about long-term implications for state laws
While it is reassuring that a majority of the Court views content moderation as a kind of protected speech, it is not clear how the lower courts will implement the Court’s instructions to try again. There is at least a chance that the lower courts will let the Texas and/or Florida laws take effect so that new legal challenges can be brought against an actual application of the law. As the Court noted, no one really knows who might be subject to either of these laws, so how they’ll be enforced and which platforms could see legal action remain open questions.
There is also some chance that the lower courts reconsider these cases as “as applied” constitutional challenges based on the facts they already have. This approach could produce legal confusion if, for example, the Texas law is found to be unconstitutional as applied to Facebook and X (formerly Twitter) newsfeeds, but courts do not determine whether the statutes might be lawfully applied to any other website or application and leave the statutes in place.
There are certainly other possible routes for these cases to take as well, many of which could leave an unknown number of websites and applications on uncertain legal footing.
What comes next
The lower courts must either follow instructions from the Supreme Court or send cases back to district courts. The reason is that in the US legal system, appellate courts like the Fifth and Eleventh Circuit Courts, as well as the Supreme Court, can typically only consider the facts established in the record by the trial courts of first impression. This means that when judges hear cases on appeal, they are limited to the scope of information presented to the courts where the cases were initially heard. Generally, appellate courts may not gather new facts or evidence: they can only say whether or not the previous court applied the law correctly based on the record.
For the NetChoice cases, this means that the circuit courts likely will not add to the record of facts and arguments that came from the district courts. This also means the circuit courts are unlikely to consider whether the Texas law could be applied to Wikipedia and, if that were so, whether that application would be constitutional. In practice, the circuit courts may have little choice but to send the cases back to the district courts with the Supreme Court’s instructions on how to address facial challenges.
Conclusion
This is the second year in a row that the US Supreme Court has ruled on a case of major significance to the Wikimedia projects, and it seems unlikely that it will be the last. Lawmakers are rightfully concerned about a variety of potential harms online, although many legislative proposals to address those harms come at the expense of freedom of expression online.
The Wikimedia Foundation remains committed to defending the rights of Wikimedia volunteer editors and readers to share and receive knowledge online, and we will continue to challenge laws that threaten those rights. As the NetChoice cases make their way back through lower courts, or possibly return to the Supreme Court someday, we will continue to track them.
We hope to create a legal environment in which no judge can limit freedom of expression online without first considering the impact of their actions on the Wikimedia projects.
