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Legal Principle at Issue

Do laws that regulate social media content moderation violate the First Amendment?

Action

In a unanimous opinion vacating the Fifth and Eleventh Circuit rulings and remanding both Moody v. NetChoice and NetChoice v. Paxton for further proceedings back to these courts.

Facts/Syllabus

Free speech online is under threat, and that is particularly true on social media platforms like X (the company formerly known as Twitter), Facebook, and Instagram. Responding to the perception that large social media companies were enforcing their terms of service to discriminate against conservative politicians and pundits, Texas and Florida enacted laws giving each state control over the platforms’ content management process.  

The Texas law, House Bill 20, prohibited large social media platforms from engaging in viewpoint-based moderation of users’ posts and required them to have an appeal process for removed posts and to respond to complaints within 14 business days. The law applies to websites with 50 million or more monthly active users. 

The Florida law, Senate Bill 7072, was enacted in May 2021 to address allegations that social media companies were moderating content based on its particular political or ideological side. SB 7072 barred platforms from removing certain users, and likewise required platforms to explain and justify their decisions to the state’s satisfaction. NetChoice, a group representing social media platforms challenged and the district court blocked the law, finding that it likely violates the First Amendment by controlling the editorial and content moderation decisions of a private platform.

The specific features of these two schemes don’t matter that much. The point is, both impose state supervision over content moderation for private speech forums.

The U.S. Court of Appeals for the Eleventh Circuit enjoined parts of the Florida law on First Amendment grounds, but the Fifth Circuit upheld the Texas law in full, writing that a website’s moderation decisions are not speech but “censorship” — and that the State may therefore regulate it without violating the First Amendment. But social media platforms are private actors, not government censors. Their decisions on what content to host on their sites, and what user accounts to allow, are editorial decisions protected by the First Amendment. 

On Dec. 6, 2023, ��ݮ��ƵAPP���� filed an amicus brief in support of NetChoice, an industry trade group for social media platforms and other Internet companies, with the Supreme Court of the United States asking it to affirm the Eleventh Circuit and reverse the Fifth Circuit. The brief explains that the First Amendment affords all publishers the same speech and press protections, whether they publish on a printing press, a movie screen, or an online platform.

Importance of Case

Supreme Court's ruling in Moody v. NetChoice and NetChoice v. Paxton clarifies that there’s no social media exception to the First Amendment. The government cannot force social media companies to distribute speech against their will. The Fifth Circuit in particular was wrong to find Texas’s law did not burden expression, and it was wrong to accept as valid Texas’s alleged interest in balancing out the marketplace of ideas. Even though the Court didn’t actually decide whether the laws violated the First Amendment, it laid down important controlling principles as the cases proceed.  The majority reaffirmed that the First Amendment applies fully to new technologies and that the moderation decisions made by social media companies are editorial decisions the Constitution protects. The decision could have major ramifications not only for social media platforms but also for other internet forums and websites that moderate their users’ speech. That’s a big win for free speech and a free internet.