The U.S. Supreme Court has sent back to lower courts the decision about whether states can block social media companies such as Facebook and X, formerly Twitter, from regulating and controlling what users can post on their platforms.

Laws in Florida and Texas sought to impose restrictions on the internal policies and algorithms of social media platforms in ways that influence which posts will be promoted and spread widely and which will be made less visible or even removed.

In the unanimous decision, issued on July 1, 2024, the high court remanded the two cases, Moody v. NetChoice and NetChoice v. Paxton, to the 11th and 5th U.S. Circuit Courts of Appeals, respectively. The court admonished the lower courts for their failure to consider the full force of the laws’ applications. It also warned the lower courts to consider the boundaries imposed by the Constitution against government interference with private speech.

Contrasting views of social media sites

In their arguments before the court in February 2024, the two sides described competing visions of how social media fits into the often overwhelming flood of information that defines modern digital society.

The states said the platforms were mere conduits of communication, or “speech hosts,” similar to legacy telephone companies that were required to carry all calls and prohibited from discriminating against users. The states said that the platforms should have to carry all posts from users without discrimination among them based on what they were saying.

The states argued that the content moderation rules the social media companies imposed were not examples of the platforms themselves speaking – or choosing not to speak. Rather, the states said, the rules affected the platforms’ behavior and caused them to censor certain views by allowing them to determine whom to allow to speak on which topics, which is outside First Amendment protections.

By contrast, the social media platforms, represented by NetChoice, a tech industry trade group, argued that the platforms’ guidelines about what is acceptable on their sites are protected by the First Amendment’s guarantee of speech free from government interference. The companies say their platforms are not public forums that may be subject to government regulation but rather private services that can exercise their own editorial judgment about what does or does not appear on their sites.

They argued that their policies were aspects of their own speech and that they should be allowed to develop and implement guidelines about what is acceptable speech on their platforms based on their own First Amendment rights.

A reframe by the Supreme Court

All the litigants – NetChoice, Texas and Florida – framed the issue around the effect of the laws on the content moderation policies of the platforms, specifically whether the platforms were engaged in protected speech. The 11th U.S. Circuit Court of Appeals upheld a lower court preliminary injunction against the Florida law, holding the content moderation policies of the platforms were speech and the law was unconstitutional.

The 5th U.S. Circuit Court of Appeals came to the opposite conclusion and held that the platforms were not engaged in speech, but rather the platform’s algorithms controlled platform behavior unprotected by the First Amendment. The 5th Circuit determined the behavior was censorship and reversed a lower court injunction against the Texas law.

The Supreme Court, however, reframed the inquiry. The court noted that the lower courts failed to consider the full range of activities the laws covered. Thus, while a First Amendment inquiry was in order, the decisions of the lower courts and the arguments by the parties were incomplete. The court added that neither the parties nor the lower courts engaged in a thorough analysis of whether and how the states’ laws affected other elements of the platforms’ products, such as Facebook’s direct messaging applications, or even whether the laws have any impact on email providers or online marketplaces.

The Supreme Court directed the lower courts to engage in a much more exacting analysis of the laws and their implications and provided some guidelines.

First Amendment principles

The court held that content moderation policies reflect the constitutionally protected editorial choices of the platforms, at least regarding what the court describes as “heartland applications” of the laws – such as Facebook’s News Feed and YouTube’s homepage.

The Supreme Court required the lower courts to consider two core constitutional principles of the First Amendment. One is that the amendment protects speakers from being compelled to communicate messages they would prefer to exclude. Editorial discretion by entities, including social media companies, that compile and curate the speech of others is a protected First Amendment activity.

The other principle holds that the amendment precludes the government from controlling private speech, even for the purpose of balancing the marketplace of ideas. Neither state nor federal government may manipulate that marketplace for the purposes of presenting a more balanced array of viewpoints.

The court also affirmed that these principles apply to digital media in the same way they apply to traditional or legacy media.

In the 96-page opinion, Justice Elena Kagan wrote: “The First Amendment … does not go on leave when social media are involved.” For now, it appears the social media platforms will continue to control their content.

The U.S. Supreme Court has ruled that a president, including former President Donald Trump, “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.”

The decision is “super nuanced,” as a law scholar explained to The Conversation shortly after the decision was announced on July 1, 2024.

While a president has total immunity for exercising “core constitutional powers,” a sitting or former president also has “presumptive immunity” for all official acts. That immunity, wrote Chief Justice John Roberts in the majority opinion, “extends to the outer perimeter of the President’s official responsibilities, covering actions so long as they are not manifestly or palpably beyond his authority.”

“There is no immunity for unofficial acts,” the court ruled.

The vote was 6-3, as the court’s three liberal justices – Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson – strongly disagreed with the majority opinion in a dissent.

“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law,” Sotomayor wrote in the dissenting opinion.

The federal prosecution against Trump for his actions to overturn the 2020 presidential election will now go back to lower courts to determine which of the federal charges against Trump can proceed. One outcome, though, is clear – this decision will have a major impact on presidential power and the separation of powers in government.

Until all of the decision’s nuances are parsed by constitutional law scholars, here are four stories to help readers better understand the arguments leading up to the decision and what was at stake with this case.

1. Laying the groundwork

Trump claimed he is immune from federal prosecution for his efforts to overturn the 2020 presidential election because he was in office as president at the time.

“Trump’s argument centered on a claim … that a president cannot be subjected to legal action for official conduct or actions taken as part of the job,” wrote Claire B. Wofford, a political science scholar at the College of Charleston.

Since 1982, in a case dating back to Richard Nixon’s presidency, presidents have been deemed immune from civil lawsuits based on their officials acts, Wofford explained, and Trump sought to expand that immunity protection. But it was a big ask, Wofford wrote:

“Protecting the president from the hassles of civil litigation is one thing; permitting the president, charged in Article 2 of the Constitution with faithful execution of the laws, to be able to break those same laws with impunity is quite another.”

Indeed, U.S. District Court Judge Tanya Chutkan wrote in December 2023 that Trump did not have the “divine right of kings to evade criminal accountability.” And a federal appeals court agreed in February 2024. That’s the ruling Trump appealed to the Supreme Court.

Read more: Trump was not king and can be prosecuted for crimes committed while president: Appeals court places limits on immunity

2. An inconsistent claim

Trump’s claim faced an uphill battle. Stefanie Lindquist, a scholar of constitutional law at Arizona State University, observed:

“In several of the lawsuits he filed challenging election results in the wake of the 2020 election, Trump himself said he was acting ‘in his personal capacity as a candidate,’ as distinct from his official capacity as president.

“Now, though, Trump claims that whether or not he was acting as a candidate on Jan. 6, his comments on ‘matters of public concern’ fall within the scope of his presidential duties.”

That inconsistency, as well as the general principle in the Constitution that no person could be above the law, made Trump’s position a difficult one to argue.

Read more: Trump claims Constitution gives him immunity − here’s why judges and the Supreme Court may not agree

3. A decision a long time coming

Wofford, a constitutional law scholar at the College of Charleston, observed before the Supreme Court’s July ruling that there was public concern about the time it took the court to reach a decision, but she said that delay was much more likely in service of democracy than it was a partisan play:

“When the Supreme Court makes a decision, it is inevitably answering a very difficult legal question. If the answers were clear, the case never would have been the subject of high court litigation in the first place.”

And the task the justices have in deciding the case is vital to the nation, she wrote:

“(G)iven the potentially unconstitutional actions Trump has threatened to take if re-elected, the country will need a strong and well-respected Supreme Court in the very near future. Those angry with the court should actually be very glad it is working as usual here. If it weren’t, their fear that Trump will get away with it all may indeed be realized.”

Read more: Supreme Court’s slow roll on deciding Trump’s immunity is the opposite of politics

4. What this means for the future

Earlier this spring, Wofford noted some disturbing portents during the oral arguments before the Supreme Court on April 25, 2024:

“Several of the justices, across the ideological spectrum, were very concerned about the practical implications of allowing a president to have immunity to some extent, or not allowing the president to have immunity.”

For instance, Wofford noted,

“Justice Samuel Alito seemed really concerned about the president being subject to political prosecution if he were not protected by immunity. … On the flip side … (Justice Ketanji Brown Jackson) said a president could enter office ‘knowing that there would be no potential penalty for committing crimes.’”

Wofford expected the justices would try to avoid granting either complete immunity or no immunity at all – and therefore allow Trump’s federal trial for attempting to overturn the 2020 presidential election to continue based on the fact that many of his actions were private, not official. Though that held peril, too, Wofford wrote:

“I wish there were a different vehicle through which the court could resolve this question and that it didn’t feel to so many people that the fate of our government, and the stability of our system, was on the line. … If it does not make a clear, resounding statement that the president is not above the law, then I think we have a serious problem.”

Read more: Trump’s immunity arguments at Supreme Court highlight dangers − while prosecutors stress larger danger of removing legal accountability

This story is a roundup of articles from The Conversation’s archives.