(WASHINGTON)— PEN America today welcomed the Supreme Court’s rejection of the most extreme arguments put forward by Florida and Texas in two cases regarding state laws that sought to severely limit the power of social media platforms to engage in content moderation. 

“The Court decisively ruled that social media platforms are acting as editors under First Amendment analysis when they choose which content to include, which to exclude and which to amplify. This means that the states cannot merely impose their own ideological editorial determinations on these private companies. At the same time, in dismissing the lower court rulings and sending the cases back for more fact finding, the Court preserved the possibility that there could be some regulation of social media companies that would survive constitutional challenge. This careful ruling provides both balance and guidance for the future,” said Eileen Hershenov, deputy chief executive officer and counsel for PEN America. 

All nine justices concurred on the decision to vacate and return the cases to the lower courts.

The lower courts were divided on the constitutionality of the statutes that restricted social media platforms’ content moderation policies, with the Eleventh Circuit striking down parts of the Florida statute as unconstitutional and the Fifth Circuit upholding the Texas law. 

The opinion written by Justice Kagan said the appellate courts failed to adequately evaluate the First Amendment issues in the cases. The statutes’ supporters argued that their aim was to counter ideological bias against conservative voices on social media while PEN America and others opposing the statutes have argued that, despite their purported aims of countering bias, they are in fact unconstitutional attempts to dictate the terms of public debate. 

In an amicus brief in Moody v. NetChoice, joined by Library Futures, PEN America argued last year that the Florida and Texas statutes are unconstitutional. 

About PEN America

PEN America stands at the intersection of literature and human rights to protect free expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. Learn more at pen.org.

Contact: Suzanne Trimel, [email protected], (201) 247-5057