Digital justice: Supreme Court increasingly confronts law and the internet

The Supreme Court under Chief Justice John G. Roberts Jr. has become the court of the digital age by routinely applying the Constitution to cases involving First and Fourth Amendment rights in internet disputes.

The high court has heard cases dealing with free speech on social media platforms and protections for Big Tech under Section 230 of the Communications Decency Act, which shields companies from lawsuits over content posted on their platforms by third parties.

The court also has tackled GPS concerns in a case involving law enforcement’s use of third-party tracking data without a warrant, ruling that it runs afoul of a reasonable expectation of privacy under the Fourth Amendment.

“The Roberts court, I think, has shown a comfort with adopting the constitutional protections as understood for decades — if not centuries — for the digital era,” said Chris Marchese, litigation center director at NetChoice. His organization has two social media law cases pending this year before the high court.

NetChoice has cited First Amendment guarantees in challenging laws in Texas and Florida that have limited the ability of social media giants such as X, TikTok and Facebook to moderate speech on their platforms.

Texas enacted a law in 2021 prohibiting social media companies from removing and moderating content that some might find offensive or hateful. It also required the companies to disclose certain business practices, such as algorithms.

A federal court in Texas blocked parts of the law from taking effect. The 5th U.S. Circuit Court of Appeals reversed that ruling, but the injunction is pending appeal.

In 2021, Florida enacted a law that imposed a daily fine of $25,000 to $250,000 on prominent social media companies that deplatform political candidates.

The high court has established a firm stance on First Amendment protections online in recent years.

In 2017, the justices unanimously struck down a North Carolina law that banned registered sex offenders from accessing certain websites where minors would have accounts, regardless of whether the offender contacted a minor. The justices reasoned that the restriction ran afoul of the sex offenders’ First Amendment rights because it was too broad and impeded their use of the internet.

In 2021, the high court sided with a high school junior varsity cheerleader in a free speech dispute after she posted curse words on her social media account about not making the varsity team. Her school had suspended her from cheerleading for a year, but the justices said that was unreasonable since her off-campus speech didn’t disrupt the classroom.

Earlier this year, the court ruled in a case involving a Colorado man convicted of harassing and stalking a musician via social media messages. He argued that the charges ran afoul of his First Amendment rights, and the high court considered whether his messages could be deemed true threats. True threats lead people to believe they will be harmed and are not given First Amendment protections.

The majority sided with the man and remanded his case to lower courts for further evaluation of the level of intent needed to determine whether a message was a true threat and, thus, not subject to free speech protections.

Companies such as YouTube and Google have also secured Supreme Court victories.

Big Tech has been given significant protections from legal liability under Section 230 of the Communications Decency Act, which protects social media companies from lawsuits over content posted on their platforms by third parties.

This legal shield was tested last term in a pair of cases in which families of victims of terrorist attacks sued several technology giants, arguing they aided and abetted terrorist organizations by allowing them to post graphic content and recruit on their sites.

The justices ruled against the families, saying that any entity or individual must have culpability in participating in a specific attack to violate federal anti-terrorism laws.

The high court also batted down law enforcement’s attempts to skirt warrant requirements in using third-party tracking data in a 2018 Fourth Amendment dispute involving a man who was convicted of robbing a series of banks after law enforcement tracked his locations via data from his cellphone company.

The justices reasoned that the Fourth Amendment provides a reasonable expectation of privacy and law enforcement must obtain a warrant to obtain tracking location information.

David Greene, civil liberties director and attorney with the Electronic Frontier Foundation, said the Roberts court could rewrite or change social media law regardless of the justices’ motivation.

“This is where a lot of litigation is happening now: at the intersection of technology and law,” Mr. Greene said. “It’s really hard to have First Amendment issues that aren’t dealing with some sort of tech-facilitated communications, so I credit them for doing it. I don’t know whether it is something they are doing intentionally or whether it is just a reflection of what is just happening in the courts more broadly.”

Josh Blackman, a professor at South Texas College of Law, said major tech companies have been brought into litigation because they have significant market power.

“In recent years, the court has had a heavy share of social media cases, and I think a lot of it turns on this idea of what exactly is this idea of social media are these sort of startup tech companies that should be given latitude, are these important market players who exercise significant power over our discourse or are these even perhaps even almost like utilities,” Mr. Blackman said.

Justice Elena Kagan has recognized that she and her colleagues aren’t necessarily the most tech-savvy crew despite taking up conflicts centered on the internet.

“We’re a court,” she said during one of the terrorist victims versus Big Tech cases last term. “We really don’t know about these things. You know, these are not like the nine greatest experts on the internet.”

The youngest justice, Amy Coney Barrett, is 51. Clarence Thomas is the oldest at 75.

Mr. Marchese said the justices’ ages don’t matter as they can rely on amicus briefs from technology experts when applying legal reasoning to internet battles. He said rulings must be shaped by the law instead of technology.

“All of the justices have had extensive careers in the law before they joined the bench,” he said.

• Correction: A previous version of this article misidentified David Greene’s position at the Electronic Frontier Foundation.