What the Recent Supreme Court Rulings Mean for the Future of Online Speech

This term at the Supreme Court saw a number of resounding wins for both online speech and internet users. In Gonzalez v. Google, Twitter v. Taamneh, and 303 Creative v. Elenis, the court provided significant insights into its views on both speech and the uniqueness of the internet.

Combined, these rulings illustrate a continued commitment to an expansive view of the First Amendment. The rulings also provide an understanding of the impact the court’s actions and government restrictions could have on the online ecosystem.

But online platforms, which now have the ability to engage in content moderation, were not the only victors this term. The cases handed a victory to all internet users who will continue to have an array of options for speech and platforms for user‐​generated content.

303 Creative was, in many ways, a follow‐​up of the court’s previous decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which tested the applicability of a Colorado anti‐​discrimination statute to expressive speech. In the case, an internet company filed a preenforcement challenge to Colorado’s Anti‐​Discrimination Act, arguing the law violated its First Amendment free speech rights by compelling the business to, contrary to the owner’s beliefs, create wedding websites for same‐​sex couples. The court reversed the 10th U.S. Circuit Court of Appeals’s ruling, holding that “all persons are free to think and speak as they wish, not as the government demands.”

But why does this matter for online speech? The court’s previous holding in Masterpiece could already be interpreted to support the understanding that First Amendment rights related to content moderation are not merely the result of neutrality on the part of an online platform. But this case now provides an even more factually based scenario to determine what content or speech online platforms can choose to host or not to host.

Notably, as Justice Neil Gorsuch wrote in the opinion in 303 Creative, “All manner of speech — from ‘pictures, films, paintings, drawings, and engravings,’ to ‘oral utterance and the printed word’ — qualify for the First Amendment’s protections; no less can hold true when it comes to speech … conveyed over the Internet.” This illustrates that the court understands that new technologies do not fundamentally alter the principles at the heart of the First Amendment.

The Supreme Court’s positioning around internet speech is particularly relevant given two cases it is likely to take next term. NetChoice v. Paxton and Moody v. NetChoice challenge Texas and Florida regulations on social media platforms that require them to leave up certain content or users. While some conservatives have called for regulation of social media platforms to require them to host certain types of speech or candidates, such a position would put them in direct conflict with the decision in 303 Creative that they are likely to cheer.

Similarly, those on the Left, such as the court’s dissenters, may be concerned about the impact the 303 Creative decision has on the LGBT community or other marginalized groups’ access to service. But they must also consider what the consequences would be of requiring a web designer or online platform to host speech with which they disagree. A position that allows the government to require private actors to host certain speech could also require the hosting of content they may find distasteful, such as antisemitic or homophobic content.

After this Supreme Court term, the internet has lived to fight another day, and the court’s decisions should be cheered by all internet users. These latest decisions will make it possible for a variety of online platforms to offer environments that allow voices online that might not have otherwise had the opportunity to speak in an analog era.

However, this is far from the last time the court will face such questions. Several new laws continue to raise concerning consequences for government restrictions on user speech, such as TikTok bans and age‐​verification requirements. But this year’s court decisions show that the First Amendment remains strong and robust in the face of such challenges.