The U.S. Supreme Court Continues its Foray into Free Speech and Tech: 2024 Year in Review

As we said last year, the U.S. Supreme Court has taken an unusually active interest in internet free speech issues over the past couple years.

All five pending cases at the end of last year, covering three issues, were decided this year, with varying degrees of First Amendment guidance for internet users and online platforms. We posted some takeaways from these recent cases.

We additionally filed an amicus brief in a new case before the Supreme Court challenging the Texas age verification law.

Public Officials Censoring Comments on Government Social Media Pages

Cases: O’Connor-Ratcliff v. Garnier and Lindke v. Freed – DECIDED

The Supreme Court considered a pair of cases related to whether government officials who use social media may block individuals or delete their comments because the government disagrees with their views. The threshold question in these cases was what test must be used to determine whether a government official’s social media page is largely private and therefore not subject to First Amendment limitations, or is largely used for governmental purposes and thus subject to the prohibition on viewpoint discrimination and potentially other speech restrictions.

The Supreme Court crafted a two-part fact-intensive test to determine if a government official’s speech on social media counts as “state action” under the First Amendment. The test includes two required elements: 1) the official “possessed actual authority to speak” on the government’s behalf, and 2) the official “purported to exercise that authority when he spoke on social media.” As we explained, the court’s opinion isn’t as generous to internet users as we asked for in our amicus brief, but it does provide guidance to individuals seeking to vindicate their free speech rights against government officials who delete their comments or block them outright.

Following the Supreme Court’s decision, the Lindke case was remanded back to the Sixth Circuit. We filed an amicus brief in the Sixth Circuit to guide the appellate court in applying the new test. The court then issued an opinion in which it remanded the case back to the district court to allow the plaintiff to conduct additional factual development in light of the Supreme Court's new state action test. The Sixth Circuit also importantly held in relation to the first element that “a grant of actual authority to speak on the state’s behalf need not mention social media as the method of speaking,” which we had argued in our amicus brief.

Government Mandates for Platforms to Carry Certain Online Speech

Cases: NetChoice v. Paxton and Moody v. NetChoice – DECIDED  

The Supreme Court considered whether laws in Florida and Texas violated the First Amendment because they allow those states to dictate when social media sites may not apply standard editorial practices to user posts. As we argued in our amicus brief urging the court to strike down both laws, allowing social media sites to be free from government interference in their content moderation ultimately benefits internet users. When platforms have First Amendment rights to curate the user-generated content they publish, they can create distinct forums that accommodate diverse viewpoints, interests, and beliefs.

In a win for free speech, the Supreme Court held that social media platforms have a First Amendment right to curate the third-party spe