Supreme Court’s Social Media Ruling Could Impact New York Law

BUFFALO, NY — After the 2020 presidential election and the January 6 riots, social media companies began stepping up moderation of content they deemed misleading or harmful.

Shawn Donahue, a political scientist at the University at Buffalo, said that soon after, some states began passing laws to fight back.

“What happened is Texas and Florida, two very conservative states, tried to rein them in,” Donahue said.

Industry group NetChoice sued both states, prompting federal appeals courts to block enforcement of the laws. The Supreme Court heard both cases simultaneously and issued a decision Monday that keeps the injunctions in place for now.

“The best way to put it is the court kind of ducked the issue. They said the case was not developed, that we had to send it back to the lower courts to review in light of our decision,” Donahue said.

This year, New York state passed a law that will require parental consent for minors to access the predictive algorithms platforms use to curate content.

“Florida and Texas are very conservative states while New York is a much more liberal state, so they approach issues from different angles,” Donahue said.

Brian Ginsburg, a partner and constitutional lawyer at Harris Beach, said the decision contained elements that could make New York’s law vulnerable to a challenge. The court explained that the First Amendment prohibits the government from enacting a law that “prevents a platform from compiling third-party speech that it wants in any way that it wants.”

Ginsburg said protecting children from the dangers of social media overuse is commendable, but she said the law can only stand if the state can demonstrate that it is “the least restrictive means of advancing a compelling governmental interest.” Gov. Kathy Hochul, however, continues to hail the legislation as a national model.

“The regulations are being developed right now, but you will be so proud of this when the rest of the nation follows what we are doing here in New York state, saying we are taking our kids back,” she said Tuesday.

Donahue said there are still many unknowns, including how the attorney general’s office will regulate and enforce the law, if and when any party will file a lawsuit against New York, and what will happen now that the Texas and Florida cases are back in their respective circuit courts.

“I think it’s very possible that the Supreme Court will one day have to revisit these cases so that states have some guidance about what the First Amendment allows and what it doesn’t allow,” he said.

NetChoice told Spectrum News that it is closely monitoring developments in New York. The attorney general’s office stressed that it considered challenges posed by other states when crafting New York’s law.