Social Media and the Law

News, Amicus Briefs, Research Reports.

Discusses cases dealing with First Amendment and Social Media, from 2018 to present, including the pending U.S. Supreme Court cases.

Sept. 27, 2023

FIRE is an advocacy group that sued the State of New York for its content moderation law.

Brennan Center, Aug. 8, 2023

Chart showing the First Amendment levels of scrutiny

Aug. 1, 2022

Government officials blocking constituents on social media is state action under sec. 1983 if the official: 1. posessed actual authority to speak on the State's behalf, and 2. purported to exercise that authority while on social media.

Vacated and remanded based on Lindke v. Freed, 601 U.S. 187 (2024).

Decided that State Attorney Generals and individual plaintiffs lacked standing to enjoin the federal government from communications with social media platforms. The plaintiffs alleged these communications resulted in the government coercing or significantly encouraging certain content moderation decisions. The Court did not address whether the government's actions resulted in coercing or significantly encouraging.

Also see Scotus Blog: links to briefs and filings, as well as to the other Netchoice case currently pending - Moody v. Netchoice.
Issue: Whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech — or otherwise burdening those editorial choices through onerous operational and disclosure requirements. There are opinions from the Fifth and Eleventh Circuit reaching different conclusions on this issue.
Holding: The Supreme Court did not reach the issue in this case as stated above. Instead, the Supreme Court vacated and remanded because the Fifth and Eleventh Circuits did not conduct a proper analysis of the facial First Amendment challenges to the Texas and Florida statutes. The Court provided some guidance as to how the facial First Amendment issues should be addressed on remand. The Court opined that it is not likely to succeed in enforcing the statute against content moderation policies for the platforms' main feeds. Law.com article on the decision.

Jameel Jaffer, 10/31/2023, NY Times.

Federalist Society, Sept. 25, 2023, 60 min

Bloomberg Law Podcast re. Lindke v. Freed and Murthy v. Missouri 1:30 - 21:30

CRS Report Nov. 13, 2023

Ninth Circuit, reversing E.D. Cal. found that California law likely unconstitutional under the First Amendment. The California law required social media companies to post terms of service, plus submit report to AG about content moderation practices regarding hate speech, harassment, radicalization, dis/misinformation & foreign political interference.

May 7 2024 Article re.: TikTok Lawsuit Sets Stage for Prolonged Legal Fight Over US Ban (Bloomberg Law)

Held that state's ban on TicToc likely violates the First Amendment & Commerce Clause and is likely preempted by national security law.

Held: Plaintiff "likely to succeed in showing that the CAADCA's [California statute's] requirement that covered businesses opine on and mitigate the risk that children may be exposed to harmful or potentially harmful materials online facially violates the First Amendment." Vacates the remainder of the district court's preliminary injunction.

Arkansas social media age verification statute likely violates First Amendment.

Filed complaint on 12/18/23, challenging Utah Social Media Regulation Act, which is child protection legislation with age verification requirement. Preliminary injunction granted 9/10/2024. Defendant (Utah AG) motion to dismiss 230 preemption claims granted 7/23/2024.