By On Monday, the Supreme Court decided not to decide two big cases from Texas and Florida about social media laws. Instead, it remanded the cases back to lower courts, chastising the white-shoe firms representing Big Tech plaintiffs for bringing the cases at a premature stage. Netchoice, the Facebook and Google trade group, had brought the cases as “facial challenges,” asking the court to find that there were substantially more unconstitutional applications of the laws than constitutional ones. A facial challenge win would not just have blocked these laws but would have halted future tech regulation.
The court’s ruling in Moody v. Netchoice was a major surprise, and a big loss for Meta, Google, and TikTok. Most observers thought the laws would be struck down, granting the tech giants their own form of immunity—from legislation. Their victory was so much a foregone conclusion that some news outlets had prewritten wins for Netchoice. “Supreme Court Strikes Down Anti-Censorship Social Media Laws In Win For Tech Platforms”, the initial HuffPost headline read, which is exactly what the court did not do. (It was quickly edited for the more accurate “Supreme Court Bounces Back Question On Social Media Moderation.”) I heard The Washington Post had a similar prewritten “strikes down” headline.
Because it is a remand, the words in the opinions are all dicta (comments or observations, not legally binding). All that really matters is that the cases have been sent back. That’s good news for the dozens of child-protective social media laws recently passed, for AI regulation, and for other consumer protection laws that touch on the tech platforms’ business practices.
However, the opinions within the remand are also important as signals. While they do sound corporate-friendly, they also indicate genuine openness to a wide array of social media regulation, depending on the motive behind the legislation, the nature of the state interest, and the kind of regulation.
Justice Kagan wrote the majority opinion, joined by Kavanaugh, Roberts, Barrett, Sotomayor, and Jackson. Kagan is breezily corporate-friendly, relying heavily on a triad of cases with very different fact patterns in which the First Amendment was used to forbid state regulation. She argues that social media regulation is not different in kind from newspaper regulation, which is mostly barred by the First Amendment. Kagan then applied her broad logic to the curated feeds of Facebook and YouTube, essentially concluding that at least some aspects of the state laws were unconstitutional.
But what might look like a wall of corporate speech maximalism is actually full of uncertainties and signs that many regulations will be upheld.
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First, Kagan seemed most affronted by the fact that the laws were motivated by a particular set of viewpoints, and were designed to suppress other viewpoints. She said the Texas law would likely not pass constitutional muster because it was “intended to suppress” speech that it didn’t like. That “intent to suppress” simply isn’t the purpose for many social media regulations, like consumer protection laws prohibiting particular social media design features. Second, Kagan approvingly cited Turner II, which upheld a federal law requiring cable operators to carry local stations, because of the strength of the state interest in that case. Clearly, a different state interest could make a difference; not all regulations are doomed. Third, she clearly signaled that sorting content based on “a user’s expressed interests and past activities” might be of different First Amendment value than platform-curation of content moderation. She wrote “we do not deal here with feeds whose algorithms respond solely to how algorithms act online.” By specifically naming algorithmic feeds, she indicates that laws regulating them could pass constitutional muster.
But perhaps the biggest revelation in the Netchoice cases is not Kagan but that Justices Amy Barrett and Kentanji Brown Jackson are going to be the all-powerful swing justices on tech regulation. Kagan needed either Barrett or Jackson for the majority; in the end, both concurred separately, and both signaled a far more sympathetic approach to tech regulation than Kagan’s own. They will hold the key to any future decision, and therefore their views—not Kagan’s—are the most important to understand.
Jackson, who was skeptical about the Netchoice overreach at oral argument, refused to engage in the substance at all, showing a graceful resistance to being dragged into theoretical fights. While Jackson concurred with some of Kagan’s opinion, she pointedly did not concur with Kagan’s efforts to analyze the constitutionality of the laws as applied to the Facebook feeds.
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Barrett’s concurrence is more revealing. While she accepted Kagan’s logic at the most abstract level, she used her concurrence to note that new technologies are not the same as old ones. She even indicated that not all algorithmically determined speech is necessarily expressive speech, and certainly should not be treated the same. “The way platforms use this sort of technology might have constitutional significance.” Barrett’s concurrence wisely avoids conclusions, instead consisting of very pointed questions. She asks:
What if a platform’s algorithm just presents automatically to each user whatever the algorithm thinks the user will like?
What about AI, which is rapidly evolving?
What if a platform’s owners hand the reins to an AI tool and ask it simply to remove “hateful” content?
If the AI relies on large language models to determine what is “hateful”… has a human being with First Amendment rights made an inherently expressive “choice…not to propound a particular point of view”?
All of these questions point to an alert mind, ready to recognize the unique features of today’s technology, and not just shoehorn in 1970s newspaper precedent.
This is very good news for the constitutional status of child protection social media laws grounded in consumer protection principles. The recent “Stop Addictive Feeds Act”—passed in New York with overwhelming bipartisan support—prohibits algorithms from using personal data and inferences about individual children to serve them feeds. It does not address viewpoint or content at all; it merely bans platforms from doing precisely what Justice Barrett talked about: targeting feeds.
Barrett’s series of questions certainly suggest that if she’s the swing vote in analyzing whether a ban on addictive algorithm-driven feeds is constitutional, she’d lean towards affirming it, and be less sympathetic to the notion that Big Tech platforms have a First Amendment right to have AI automatically addict our children.
In other words, the Netchoice opinion is not just a signal to federal courts to slow down and analyze each function, law, and purpose in a fact-specific way. It’s also a signal to state lawmakers that there is room to breathe, innovate, and pass consumer protection laws and journalism protection laws—so long as they are not aimed at excluding specific viewpoints.
The story of the First Amendment in the late 20th and early 21st centuries has been a story of expansion. Designed to protect dissenters and newspapers, the First Amendment has become the favorite tool of multinational corporations to strike down democratically passed laws. “Congress shall make no law abridging the freedom of speech, or of the press” has become “Congress may not pass campaign finance laws (Citizens United, 2010; McCutcheon, 2014) or ban the sale of personal data to Big Pharma companies (Sorrell, 2011).”
Big Tech companies have been especially eager to expand First Amendment protection from state laws, so that they can shield themselves from laws regulating social media’s targeting of children, antitrust laws, and AI regulation. They thought they had found a perfect pair of vehicles to further that expansion through these two badly crafted laws. Texas’s law banned social media companies with 50 million or more users from removing or demoting posts based on the view expressed in the post, or the viewpoint of the poster. The law also required social media platforms to disclose their content-moderation policies. Florida’s law limited social media platforms’ ability to demonetize, remove, or otherwise restrict political candidates and journalistic outlets and prohibited the platforms from attaching labels to user-generated content.
Big Tech is trying to spin this case as a win, because it wants to chill the imagination and energy of state lawmakers. But when they decided to sue, seeking a broad, big shield from state legislation, the tech companies shot for the moon and, thankfully, fell short.
With Justices Barrett and Jackson in the driver’s seat, we can actually see a glimmer of hope, a “sliver of optimism,” that there are new alignments on the court—especially around Big Tech and corporate speech. Jackson, Barrett, Alito, Thomas, and Gorsuch may end up forming a formidable alliance, where skepticism of Big Tech dominance of the public sphere (Thomas, Alito, and Gorsuch) marries a distaste for corporate speech rights to a Gen-X understanding of the technology (Jackson and Barrett).
Given the last two weeks of truly terrible Supreme Court opinions, progressives should count this decision as a win.
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![On Feb. 27, 2013, just a few hours after Solicitor General Donald Verrilli endeavored to protect the Voting Rights Act before the U.S. Supreme Court, he dropped by his boss’s office and told US Attorney General Eric Holder that arguments in the case, Shelby County v. Holder, had gone poorly. Verrilli warned Holder things might be worse than they feared: The Court intended to go after the entirety of preclearance, the VRA’s most crucial enforcement mechanism. Holder scarcely believed that could be possible. “The Voting Rights Act? Come on,” Holder said. But to the veteran solicitor general, recovering from the most brutal experience he’d ever had before the Court, the writing was on the wall. “I walked out of that courtroom certain that’s what was going to happen,” Verrilli told me. “I was never optimistic at all.” Verrilli had underestimated how meticulously John Roberts had planned for this moment. He never imagined that he’d be hit with such mendacious numbers and arguments in a sanctum he revered. And though his pessimism turned out to be abundantly justified, the dishonest reasoning behind Roberts’s decision – that the chief justice could just conjure a doctrine of his own creation and use it to eviscerate the most important civil rights legislation in the nation’s history – haunts the solicitor general to this day. It has remade American democracy as well. [dropcap]J[/dropcap]ohn Roberts had schemed for decades prior to this moment. Three years earlier, a test case known as Northwest Austin allowed Roberts to carefully plant the seeds for the challenge that foes of voting rights law mounted in Shelby County. A tiny municipal water board in a new Texas development posed a large constitutional question. The VRA’s preclearance regime required every locality in the state to -approve in advance any changes to voting procedures through the Department of Justice. Preclearance worked to right historical wrongs: The VRA mandated it in the handful of states and localities with the worst records of racial discrimination in elections; when Congress reauthorized the Voting Rights Act by near-unanimous margins in 2006, it relied on a record of ongoing modern chicanery stretching toward 14,000 pages, bearing eloquent testimony to the ongoing need for preclearance. Two lower federal courts had agreed that the utility district did not qualify for exemption from the VRA, and that preclearance itself remained a proportionate response by Congress. “The racial disparities revealed in the 2006 legislative record differ little from what Congress found in 1975,” wrote federal appeals Judge David Tatel. “In view of this extensive legislative record and the deference we owe Congress, we see no constitutional basis for rejecting Congress’s considered judgment.” Before Tatel wrote his decision, he read every page of the 2006 congressional report, and tracked the stories of canceled elections and last-second precinct switches across Mississippi, Louisiana and other covered states. He did so, he told me, because “I had no confidence that the Supreme Court would ever look at the record.” His fears were justified. On April 29, 2006, during the oral arguments over Northwest Austin, Roberts expressed impatience, and sounded as if he simply didn’t believe these challenges continued. “Well, that’s like the old elephant whistle. You know, I have this whistle to keep away the elephants,” he said, dismissively, as the defense pointed out the ongoing need for preclearance in the case. “There are no elephants, so it must work. “Obviously no one doubts the history here,” he added. “But at what point does that history stop justifying action with respect to some jurisdictions but not with respect to others . . . . When do they have to stop?” Neal Kaytal, then the principal deputy solicitor general, responded that since Congress had reauthorized the VRA for another 25 years, that date would be 2031. Roberts was unimpressed. “I mean, at some point it begins to look like the idea is that this is going to go on forever.” The court’s five conservatives wanted to move on, and several appeared ready to address the larger constitutional issues that would trigger a challenge the VRA, but didn’t have much beyond vibes to go on. So Roberts brokered a deal, and wrote an apparently unifying decision for a court that appeared deeply divided during oral arguments. Everybody won, sort of. The water district would be allowed to bail out of preclearance requirements. Other small entities were invited to apply for a reprieve. At the same time section 5—laying out the VRA’s preclearance regime— survived. The liberal justices bought time for Congress to potentially address the court’s impatience with the preclearance formula once more. “It wasn’t exactly a principled constitutional decision,” says Tatel, who had scoured the law to see if he could deliver a similar ruling that sanctioned a bailout for the water district, in part to keep the VRA away from the high court. But the law clearly didn’t allow it. (“It doesn’t work with the law. It’s not right,” he told me, “but that didn’t bother the court.”) “They made a deal,” says Edward Blum, who helped bring the challenge to the VRA, and would also mastermind the clutch of cases that led the court to end affirmative action in college admissions. Roberts seemed to have done the impossible, and he won praise from the media and court watchers for his measured and far-seeing “judicial statesmanship.” Liberals even claimed victory, crowing to The New Republic that they prevented the VRA from being struck down 5-4 by threatening some thunderous dissent that either led Justice Kennedy to get cold feet or the chief justice to back down. If the liberals wanted to celebrate an imaginary win, Roberts had no problem with that. The chief justice was busy digging a trench and setting a trap. Indeed, the liberal justices scarcely seemed to notice the actual language of the opinion that they signed onto. “Things have changed in the South,” Roberts declared, writing for the full court. The VRA, he wrote, “imposes current burdens and must be justified by current needs.” Roberts had conned the liberals into signing onto a broad indictment of the reasoning behind preclearance, aimed at a future case and a future decision. “The statute’s coverage formula is based on data that is now more than 35 years old,” Roberts argued, as though civil-right legislation had a sell-by date. “And there is considerable evidence that it fails to account for current political conditions.” Then Roberts made one additional stealth play that helped assure that the next challenge to the VRA would arise quickly and would be aided by the plaintiffs’ success in Northwest Austin. He made an observation known as dicta—a comment that might not be necessary to resolve a case or even be legally binding in the future, but that can be cited as a “persuasive authority.” This is where Roberts gave birth to the fiction of a “fundamental principle of equal sovereignty” among states. The trouble with the principle is that it does not exist. Roberts created it with an ellipsis and what can only be understood as deliberate misapplication of the law. Indeed, the Supreme Court had rejected this precise reading in a 1966 voting rights case that upheld the Act’s constitutionality, in the very sentence that Roberts later claimed said the opposite. How did he get away with turning up into down? He cut the clauses he didn’t like and called it law. Here is the actual decision from the case in question, Katzenbach v South Carolina: In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary . . . . The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. And here is what Roberts wrote: The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets. Before Roberts wrote this, there was no such principle—let alone a fundamental one. The cases that Roberts cites as authorities for the idea of equality among states actually concern the “equal footing doctrine,” which secures equality among newly admitted states. No fundamental principle of equality among states governs the Fifteenth Amendment, which explicitly hands Congress the power to enact appropriate legislation to ensure equal treatment of all voters within states. Liberal justices either didn’t notice the dicta or did not think that Roberts would be so brazen as to write it into law citing his own invented precedent the next time a preclearance case came before the court. They underestimated both his chutzpah and hubris. It would not be the first, or the last time. [dropcap]I[/dropcap]f Roberts weakened the VRA’s foundations in Northwest Austin, four years later, in Shelby County, he came with the bulldozer. The preclearance formula had become outdated and no longer considered “current conditions,” Roberts wrote, brushing aside the lengthy congressional record filled with modern-day examples. Singling out states for disparate treatment, he held, failed to accord each state its “equal sovereignty.” The decision appeared modest and suggested that the Court had little choice but to act. But the feigned modesty was pure misdirection. The Shelby County decision is a deeply radical one. It usurps powers the Constitution specifically awards Congress. It uses the fictional principle of equal sovereignty, cooked up by Roberts in 2009, as its basis. And it cites statistics that are factually wrong and misstate the U.S. census. In the wake of other draconian hard-right decisions, such Dobbs v. Jackson Women’s Health (2022), reversing the right to abortion, and Loper Bright Enterprises v. Raimondo (2024), striking down “chevron deference” and effectively undermining the authority of federal regulatory agencies, public confidence in the high court has plummeted. Large majorities of Americans see the justices as partisan proxies, viewing the law through whatever lens might create victories for their side. But even this disillusioned American majority may not suspect that the justices might just be making the law up as they go along—that their opinions carry footnotes and the force of law but stand on air. Nor do most Americans fully appreciate that five, and now six, of them can get away with this because they form a majority ideological bloc, accountable to no one. That’s the real story behind John Roberts’s opinion in Shelby County. The chief justice obliterated the most successful civil rights legislation this nation has ever seen not just on flimsy criteria but on none at all. “It’s made up,” the conservative judge and law professor Michael McConnell, a George W. Bush appointee, told NPR. “This is a principle of constitutional law of which I had never heard,” the conservative judge and legal scholar Richard Posner observed, “for the excellent reason that … there is no such principle.” “Yes, that’s right,” says Leah Litman, a law professor at the University of Michigan. “There are passing references to the idea of equal sovereignty. But if you pause and think about them for more than a second, it’s clear that [Roberts] made the doctrine into something that it just wasn’t.” Litman is the national authority on equal sovereignty. In 2016, she wrote a complete 67-page history of what Roberts called a “fundamental principle” and “historic tradition.” Her conclusion? Roberts manufactured it for his own purposes. It is, she writes, an “invented tradition”---invented by John Roberts, and then cited by John Roberts. What Roberts didn’t make up, he got wrong. Roberts based his reasoning that things had changed in the South on voter registration statistics that, to him, showed that Blacks and whites had reached something close to parity—and that in some states, Blacks had even surpassed whites. His opinion even included a chart ostensibly documenting this. In reality, though, Roberts had the statistics backward. They did not show what he said they did. In many cases, they showed the opposite. Roberts used the numbers from the Senate Judiciary Report—the one that Republicans generated after the VRA’s passage to plant a record for its judicial demise. And intentionally or otherwise, the GOP report got it wrong. Roberts and the committee overstated white registration numbers. The Roberts chart counted Hispanics as whites—even those who were not U.S. citizens and therefore ineligible to vote. That basic error threw off all the demographic comparisons. In Georgia, for example, Roberts claimed that Black registration had risen to 64.2 percent and white registration had fallen behind at 63.5. But without the Hispanic numbers, white registration grew to 68 percent. It’s an improvement from 1965. But it’s not an example of Black registration outpacing whites, as Roberts claimed. In Virginia, meanwhile, Roberts argued that the gap between whites and Blacks had narrowed to just 10 percent—when in reality, it was more than 14 percent. Roberts simply didn’t understand how the census reported race. The Bureau treats race and ethnicity differently. Hispanics are counted as an ethnicity, then usually included under white. The chief justice should have used the data for white-non-Hispanic. But that would not have given Roberts the result he wanted. When reporters asked the court to explain how he could have gotten something so basic so wrong, the chief justice declined to answer questions. The court “does not comment on its opinions,” said a spokesperson, “which speak for themselves.” [dropcap]“T[/dropcap]his was Congress’s decision to make,” solicitor general Verrilli told me—a power awarded explicitly by the Reconstruction amendments to the Constitution. Debo Adegbile, who defended the VRA before the court during both Shelby County and Northwest Austin, sees the long throughline of the Court’s resistance to the full sweep of those amendments. The court’s impatience with the past, its eagerness to declare the job complete and the nation whole, reminded him of the 1870s Cruikshank and Civil Rights Cases decisions that choked off Reconstruction and insisted Blacks must “cease to be the special favorites of the law” even as freed slaves carried scars of their bondage. “It’s just the continued resistance to the commitment to make the country whole and to be an inclusive democracy,” he told me. “And it’s being dressed up in sophisticated legal arguments. It’s not that we’re actually past anything. It’s that we are now at a point where we have the power to decide that we’re going to vary from the mission, create a situation where voters are exposed and . . . advantage the manipulations of state actors and local actors to impose barriers.” Holder still stammers in disbelief. “Okay, Mr. Chief Justice, you say that America has changed. OK. And what’s your basis for saying that, as opposed to Congress holding hearings, thousands of pages of testimony, hundreds of exhibits that say America has changed some, but not enough? You’re saying, ‘No, Congress, essentially you’re wrong.’ . . . OK. Then where were your researchers?” The former attorney general winces in horror when the case is referred to by its full name: Shelby County v Holder. He cites two days as the worst of his tenure: The day he accompanied President Barack Obama to console parents of children slain during the Sandy Hook massacre, and “the other one was to hear from the Supreme Court that the Voting Rights Act of 1965 was, in substantial ways, murdered.” “Nothing had changed in the South,” he told me. “The only thing that changed was the personnel on the U.S. Supreme Court.” Verrilli also replays this crushing defeat in his head, wondering if there was anything he could have done to guard the Voting Rights Act against implacable foes. “I wish I could tell you, David, that I have stopped doing that, but I have not. It haunts me to this day.” He slows and wipes his eyes. It’s clear he is fighting back tears, unsuccessfully. “I think all the time about what I might have done differently, because it was a devastating defeat and it had huge consequences. I take solace in the thought that I don’t think there’s anything I could have done differently. But that only makes it marginally less powerful.” Adapted from Antidemoccratic: Inside the Far Right’s 50-Year Plot to Control American Elections by David Daley, Mariner Books, 2024. All rights reserved](https://www.thenation.com/wp-content/uploads/2024/08/RobertCrop.jpg)
On February 27, 2013, just a few hours after Solicitor General Donald Verrilli endeavored to protect the Voting Rights Act before the US Supreme Court, he dropped by his boss’s off…
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