NetChoice v. Fitch
The Supreme Court refused to lift the pause on enforcement of Mississippi's social-media law, allowing it to remain in effect while the underlying lawsuit continues.
In a striking concurrence, Justice Kavanaugh stated that the law is 'likely unconstitutional' under existing First Amendment precedents — but that the balance of harms did not justify emergency relief at this stage.
How it got here: A federal district court blocked the Mississippi law; that block was stayed on appeal, allowing enforcement to resume; NetChoice asked the Supreme Court to lift the stay, which the Court denied.
The Case in Depth
What happened
NetChoice, a trade group representing social media and technology companies, sued Mississippi's attorney general to block a state law the group says restricts what its members can do on their platforms, arguing the law violates the First Amendment's free-speech guarantees. The federal district court agreed and blocked the law. That block was then paused on appeal, allowing Mississippi to enforce the law again, and NetChoice asked the Supreme Court to restore the district court's block.
The question before the Court
Should the Supreme Court lift the pause on enforcement of Mississippi's social-media law while NetChoice's First Amendment lawsuit works its way through the courts?
The Court's answer
The Court denied NetChoice's request to lift the pause on the Mississippi law's enforcement, leaving the law in effect while the underlying lawsuit continues. Justice Kavanaugh, in a concurrence joined by no other justice, explained that while NetChoice had shown it would likely win on the merits — because the law likely violates the First Amendment under the Court's existing precedents — that was not enough on its own to justify emergency relief.
The decisive factor was the balance of harms: NetChoice had not sufficiently shown that the hardships it faced from the law taking effect outweighed the other considerations at this stage. Because that balance was not met, the Court declined to intervene in the interim, even though Justice Kavanaugh described the law as likely unconstitutional.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Mississippi's social-media law remains enforceable while appeals continue, even though eight federal district courts have blocked similar laws in other states. Justice Kavanaugh's public declaration that the Mississippi law is likely unconstitutional adds unusual weight to ongoing legal challenges, though the Supreme Court has not decided the merits and the underlying lawsuit still must run its course.
What changes now
The Mississippi social-media law remains enforceable while the appeal plays out in the lower courts. The district court's injunction blocking the law stays paused. If NetChoice ultimately prevails in the Fifth Circuit or returns to the Supreme Court after a full merits briefing, the law could still be struck down. Justice Kavanaugh's concurrence signals that the First Amendment question remains very much alive and is likely to return to the Court.
What this does not decide
The Court has not decided whether the Mississippi social-media law actually violates the First Amendment. Justice Kavanaugh's view that the law is "likely unconstitutional" is his own assessment, not the Court's holding. The order says nothing about the validity of similar laws in other states and does not resolve the underlying lawsuit.
Concurrences and dissents
Concurrence — Justice Kavanaugh
Justice Kavanaugh agreed with denying the application but wrote separately to make clear that, in his view, NetChoice is likely to win on the merits: the Mississippi law likely violates the First Amendment under the Court's existing precedents, and it is no surprise that eight federal district courts have blocked similar state laws. He denied relief solely because NetChoice failed to show the balance of harms and equities favored it right now.
How the Court got there
The legal reasoning, step by step
- Requests for emergency relief — like asking the Court to lift a stay — require the applicant to satisfy multiple factors, not just one. The applicant must show a likelihood of success on the merits, a risk of serious harm without relief, and that the overall balance of harms and equities tips in its favor.
- Justice Kavanaugh concluded that NetChoice cleared the merits factor: the Mississippi social-media law likely violates the First Amendment based on the Court's recent decisions, particularly its 2024 ruling in Moody v. NetChoice, which addressed similar state social-media restrictions. He noted that eight federal district courts had reached the same conclusion and enjoined comparable laws in other states.
- Despite clearing the merits hurdle, NetChoice did not sufficiently demonstrate that the balance of harms and equities favored granting interim relief at this time. Emergency relief requires all the relevant factors to line up, and this one did not.
- Because the balance-of-harms requirement was not met, the Court denied the application — even with a likely constitutional violation on the table. The denial is not a ruling on the Mississippi law's constitutionality; it is only a decision about whether to intervene before the lower courts have finished working through the case.