In a blockbuster First Amendment term, the Supreme Court got the big stuff right

By ANGEL EDUARDO and RONNIE LONDON

This term, the Supreme Court heard eight First Amendment-related cases. The Justices ruled on some cases and side-stepped the ultimate merits in others — but the term still provided important takeaways for Americans’ free speech rights. Here are five big things you should know about the Court’s First Amendment decisions.

Internet speech is just as protected as any other speech

One major theme running through this SCOTUS term has been the government’s relationship with social media platforms like X, Facebook, YouTube and others. Two of those cases, Moody v. NetChoice and NetChoice v. Paxton, examined two separate laws in Florida and Texas, respectively, which sought to control social media platforms’ content moderation decisions. Specifically, the laws targeted the extent to which the states thought these platforms were removing or limiting access to conservative content, calling such moderation efforts “censorship.”

The Court disagreed, explaining that the government can’t dictate what posts social media platforms must publish, or what priority they must give them, any more than it can dictate what stories, letters to the editor, or other items newspapers or magazines must publish. Although the Court did not decide whether the two state laws are constitutional, it articulated rules governing further proceedings, chief among them that new technologies — including social media — receive full First-Amendment protection.

“The court rightly rejects the idea that lawmakers have more authority over speech online than they do offline,” said FIRE chief counsel Bob Corn-Revere. “That’s a big win for free speech and a free internet.”

Importantly, these points apply regardless of whether the content in question is the social media feeds themselves or in user responses. Two other cases, Lindke v. Freed and O’Connor-Ratcliff v. Garnier, which the Court reviewed together, dealt with whether government actors can block users from commenting on social media accounts that the officials use to conduct government business. 

As the Court explained, “An official cannot insulate government business from scrutiny by conducting it on a personal page.” Put plainly: the First Amendment prevents a government official from limiting the speech of American citizens if he or she opens a public forum, and that’s no less true online.

The government cannot police the marketplace of ideas

Many of the decisions regarding the government and social media revolved around determining “governmental interest.” In other words, for the government to legitimately step into the realm of limiting or compelling speech, it must have a verygood reason — one that relates directly to its ability to fulfill its governmental duties. And even in that case, the means by which it regulates speech must be as narrow as possible.

The NetChoice cases make clear the government’s desire to tilt or “balance” public discourse — even if its supposed desire is to prevent bias — is never a legitimate governmental interest. It is simply not within the government’s duty, responsibility, or power to control or curate the content or even the tone of public conversation. As the Court put it: “On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.” 

And that’s true regardless of whether the government tries to put its thumb on the scale directly, or if it engages in roundabout methods. . . 

Indirect censorship is still censorship — and it’s still unconstitutional

Another case the Court heard this term, National Rifle Association v. Vullo, was a lawsuit against the former superintendent of the New York State Department of Financial Services, Maria Vullo, for using her authority to pressure insurance companies behind the scenes to cut ties with the gun-rights organization. Indeed, Vullo’s tactics successfully prompted Lloyd’s of London to terminate business with the NRA, and she didn’t stop there. She also went on to apply the same pressure to other companies in New York to follow suit, in a clear attempt to further a political agenda against the NRA.

In holding that the NRA had sufficiently alleged a constitutional violation, the Court reaffirmed that a “government official cannot coerce a private party to punish or suppress disfavored speech on her behalf,” a key First Amendment principle previously articulated in Bantam Books, Inc. v. Sullivan. In that 1963 case, the Court struck down Rhode Island’s use of a Commission to Encourage Morality in Youth to “advise” bookstores on what books to avoid because they might contain “obscene, indecent or impure language, or manifestly tend to the corruption of youth.”

“The coercive tactics used by New York officials were a naked attempt to evade the Constitution,” said Corn-Revere. “The government cannot use its bully pulpit to censor speech it doesn’t like without violating the First Amendment. 

The decision is a major victory for free expression and the rule of law. NRA v. Vullo did the important work of (among other things) reinforcing Bantam Books. It also identified some of the factors courts should examine in assessing if government officials have overstepped and used their authority coercively.

Along with NRA v. Vullo, another case, Murthy v Missouri, also known as Missouri v. Biden, similarly focused on coercive informal action by public officials — involving, as with other cases this term, social media. Specifically, the case required the courts to consider the constitutionality of the Biden administration using its power and influence behind the scenes to pressure and intimidate social media platforms to remove or limit the visibility of “misinformation,” particularly surrounding the COVID-19 pandemic and the 2020 election. 

This behavior, commonly referred to as “jawboning,” has been utilized by members of both parties, including former President Donald Trump. And while the Court did not reach the First Amendment issue the case presented, its unanimous ruling in Vullodoes much of that work.

“Despite reams of evidence documenting government pressure, the court held these plaintiffs lacked standing to sue,” Corn-Revere said about the Murthy ruling. “FIRE is concerned about what this means for future First Amendment plaintiffs. But the majority opinion notes courts have the power to stop government attempts to pressure social media platforms when proven. That’s important.”

Beware of appeals to history or originalism to justify censorship

This Supreme Court term was not necessarily a clean sweep from a free speech standpoint, however. 

In Vidal v. Elster, the Court considered the U.S. Patent and Trademark Office’s rejection of the application of Steve Elster, who wanted to trademark the phrase “TRUMP TOO SMALL” for a line of t-shirts he created. The PTO cited a section of the Trademark Act that prohibits registrations of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.”

In defending the rejection, the Trademark Trial and Appeal Board argued Elster’s phrase used the name of President Donald Trump without his written consent. It also claimed the applicable provision of the Act is viewpoint neutral even if not content neutral — meaning it does not violate the First Amendment. The Court largely agreed, with Justice Thomas writing that “trademark rights have always coexisted with the First Amendment, despite the fact that trademark protection necessarily requires content-based distinctions.”

As FIRE’s “friend of the court” brief in the case illustrated, the primary concern was in the distinction between content neutral and viewpoint neutral regulation. Numerous trademarks have been issued using the former president’s name: “GOTRUMP,” “SUCCESS BY TRUMP,” and “TRUMP CARD,” while others, such as “DUMP TRUMP AND LOCK HIM UP,” “TRUMP CHUMP,” and “TRUMP LIED, THOUSANDS DIED” were denied.

If the registering of a trademark is contingent upon whether a public figure or public official agrees with it, it will be no surprise to find marks favorable to that person will be granted registrations and unfavorable ones denied.

But the ruling wasn’t necessarily anti-free speech. By confirming that viewpoint-based denials are unconstitutional, the Court largely assuaged the central concern of the case. And to the extent it made an exception in this particular context for content-based regulation (which would otherwise receive heightened scrutiny), the Court at least made sure it applied only to trademarks. In other words, it kept the exception’s boundaries tight, preventing collateral First Amendment issues from arising as a result of this decision.

Overall, the Roberts Court continues to be protective of speech

Most of the rulings on First Amendment-related cases this term were speech-protective, even when they did not decide the overall merits of the claims. And in certain cases where they didn’t quite hit the mark, such as Vidal, the decisions were still made with an eye towards limiting the powers of the government to infringe the expressive rights of American citizens.

That’s a very good thing. A number of these cases, if they had gone the other way, would have spelled serious trouble for First Amendment protections and free speech in a time where open inquiry, open debate, and open discourse may be more important than ever.

As always, FIRE will continue to monitor cases that arise, keep you informed, and staunchly defend freedom of speech every step of the way.

Since its founding more than two decades ago as the Foundation for Individual Rights in Education, FIRE has become the nation’s leading defender of fundamental rights on college campuses through our unique mix of programming, including student and faculty outreach, public education campaigns, individual case advocacy, and policy reform efforts. In 2022, FIRE changed its name to the Foundation for Individual Rights and Expression and announced an expansion initiative into off-campus free speech advocacy and legal defense.