Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, March 27, 2024

Smith on Social Media Regulation in the Wake of 303 Creative v. Elenis @msmith750

Michael L. Smith, St. Mary's University School of Law, has published Social Media Regulation in the Wake of 303 Creative v. Elenis. Here is the abstract.

The Supreme Court capped its turbulent October 2022 term with its ruling in 303 Creative v. Elenis, in which it held that Colorado couldn’t apply its anti-discrimination law to penalize a website business’s refusal to provide wedding websites to same-sex couples. The opinion met with swift criticism by commentators who argued that the Court’s ruling minimized the dignitary harms of those subjected to discrimination by business owners. Other critics argued that the ruling could be applied to permit other forms of discrimination—including discrimination on the basis of sex or race. How widely the Court’s ruling may end up reaching depends in large part on whether businesses’ conduct is deemed to be expressive and therefore protected by the First Amendment. This issue was stipulated in the 303 Creative litigation, and therefore remains largely unsettled in a modern era of public image and social media presences. The Court, however, may clarify the nature of expressive conduct in reviewing the scope of states’ abilities to restrict social media platforms’ ability to ban users and to limit the content and scope of user-posted content. Florida and Texas each enacted laws restricting social media platforms, and the Eleventh and Fifth Circuit Courts of Appeal reached opposing conclusions on whether these restrictions are permissible under the First Amendment. These cases, Moody v. NetChoice and NetChoice v. Paxton, are pending before the Supreme Court, and offer an early opportunity to clarify the scope and nature of protected expressive conduct. Ironically, many commentators critical of 303 Creative appear to support the Eleventh Circuit’s ruling that social media companies engage in expressive conduct when restricting users—a ruling that may well end up expanding the scope of 303 Creative’s impact should the Supreme Court take a similar approach. This article explores this inconsistency, and traces its origins to the absolutist treatment of rights on display in 303 Creative and in the NetChoice cases.

Download the article from SSRN at the link.

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