The Supreme Court declined to rule Monday on challenges to laws out of Florida and Texas that curtail content regulation by social media giants, a rule meant to protect conservative voices on major platforms like Facebook and X.

In a unanimous decision for the combined NetChoice v. Paxton and Moody v. NetChoice cases authored by liberal Justice Elana Kagan, the high court concluded that neither of the lower courts which considered the laws “conducted a proper analysis of the facial First Amendment challenges.”

Florida and Texas drafted laws regulating social media companies’ moderation policies after former President Donald Trump was kicked off Facebook and X, then known as Twitter, following the Jan. 6, 2021, Capitol riot. He has since been allowed back on both platforms.

Both plaintiffs and defendants had sought to claim the mantle of free speech in the case, in which NetChoice and the Computer & Communications Industry Association challenged the state laws.

One federal appeals court struck down Florida’s statute, while another upheld the Texas law, both of which were on hold while the Supreme Court considered the case and will remain unenforced following Monday’s ruling. 

“These are facial challenges, and that matters. To succeed on its First Amendment claim, NetChoice must show that the law at issue (whether from Texas or from Florida) ‘prohibits a substantial amount of protected speech relative to its plainly legitimate sweep,'” Kagan wrote. 

“None of the parties below focused on that issue, nor did the Fifth or Eleventh Circuits.”

Kagan contended that the lower courts did not assess the First Amendment elements correctly and reserved particular criticism for the New Orleans-based 5th Circuit Court of Appeals, which took the Texas case, chiding that it demonstrated a “serious misunderstanding of First Amendment precedent and principle.”

“The proper analysis begins with an assessment of the state laws’ scope. The laws appear to apply beyond Facebook’s News Feed and its ilk. But it’s not clear to what extent, if at all, they affect social-media giants’ other services, like direct messaging, or what they have to say about other platforms and functions,” she wrote.

Both Texas and Florida contended that social media companies were effectively public utilities, and therefore, required to be content-neutral with their moderation. 

Florida’s law specifically blocked companies from permanently banning individuals and Texas’ law directly stopped platforms from taking down content based on a user’s views.

NetChoice countered that as private companies, the social media platforms had their own rights to free speech and could adjust moderation policy to their liking, similar to newspapers. 

The Biden administration backed the NetChoice and CCIA challenge. 

In her opinion, Kagan also dropped some hints about the direction she might take after the lower courts rule on the First Amendment questions. 

“To the extent that social media platforms create expressive products, they receive the First Amendment’s protection. And although these cases are here in a preliminary posture, the current record suggests that some platforms, in at least some functions, are indeed engaged in expression,” she wrote.

“…The point is just that Texas’s law profoundly alters the platforms’ choices about the views they will, and will not, convey. And we have time and again held that type of regulation to interfere with protected speech,” she later added.

During oral arguments back in February, justices on the high court sounded torn over the case.

Last month, the Supreme Court rejected a challenge against the Biden administration alleging that it colluded with Big Tech companies to stifle free speech, especially during the COVID-19 pandemic. 

That decision was based on the high court’s finding that the plaintiffs lacked standing in the matter. It did not rule on the merits of the case.