Moody v. NetChoice, LLC
603 U.S. 707 (2024)
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Rule of Law:
A private entity's curation of third-party speech into a distinct expressive product, such as a social media feed, constitutes an exercise of editorial discretion protected by the First Amendment. A state may not compel such an entity to host or promote speech it would otherwise exclude for the stated purpose of rebalancing the marketplace of ideas.
Facts:
- Major social media platforms, including members of NetChoice like Facebook and YouTube, engage in 'content moderation' on their main user feeds.
- This moderation includes removing, demoting, prioritizing, and labeling user-generated content based on the platforms' own 'Community Standards' or 'Community Guidelines'.
- These standards prohibit or disfavor various categories of content, such as hate speech, misinformation, incitement to violence, and harassment.
- In 2021, Florida enacted law S.B. 7072, which prohibits social media platforms from 'censoring' or deplatforming political candidates and 'journalistic enterprises.'
- The Florida law also requires platforms to apply their censorship and moderation standards in a consistent manner to all users.
- In 2021, Texas enacted law H.B. 20, which prohibits platforms from 'censoring' a user's expression based on the 'viewpoint' it contains.
- The Texas law broadly defines 'censor' to include any action to 'block, ban, remove, deplatform, demonetize, de-boost, restrict, [or] deny equal access or visibility to' expression.
- Both state laws also include provisions requiring platforms to provide individualized explanations to users whenever their content is moderated.
Procedural Posture:
- NetChoice, a tech industry trade group, filed suit against Florida officials in the U.S. District Court for the Northern District of Florida, seeking a preliminary injunction against law S.B. 7072 on facial First Amendment grounds.
- The district court granted the preliminary injunction, halting the law's enforcement.
- Florida officials appealed to the U.S. Court of Appeals for the Eleventh Circuit, which affirmed the district court's injunction, finding the law likely unconstitutional.
- Separately, NetChoice sued Texas officials in the U.S. District Court for the Western District of Texas, seeking a preliminary injunction against law H.B. 20.
- The district court granted the preliminary injunction.
- Texas officials appealed to the U.S. Court of Appeals for the Fifth Circuit, which reversed the injunction, holding that the platforms' content moderation was not protected speech.
- The U.S. Supreme Court granted certiorari in both cases to resolve the conflict between the circuit courts.
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Issue:
Does a social media platform's curation of user-generated content, such as through filtering and prioritizing posts in a news feed, constitute expressive activity protected by the First Amendment?
Opinions:
Majority - Justice Kagan
Yes, a social media platform's curation of user-generated content on its main feeds is an exercise of editorial discretion that constitutes expressive activity protected by the First Amendment. The Court reasoned that, like newspaper editors, cable operators, and parade organizers, platforms that select and arrange third-party speech into a curated compilation are creating their own expressive product. Forcing a platform to carry messages it would otherwise remove, demote, or label alters its expressive choices and intrudes upon its First Amendment rights. The Court rejected Texas's argument that its law was justified to promote a diversity of ideas, stating that the government cannot interfere with private speech to advance its own vision of ideological balance. However, the Court vacated and remanded because the facial challenges were improperly analyzed by the lower courts. A proper facial analysis requires determining the laws' full scope, including applications to potentially non-expressive functions (like direct messaging), and then weighing the number of unconstitutional applications against the 'plainly legitimate sweep' of the laws.
Concurring - Justice Barrett
Joined the majority opinion but wrote separately to emphasize the difficulty and potential impossibility of adjudicating such broad facial challenges. She argued that as-applied challenges focused on specific functions would be more appropriate. Justice Barrett also raised complex future questions for lower courts to consider, such as how the use of automated algorithms and AI might attenuate the human expressive choice underlying First Amendment protection, and whether a platform's foreign ownership could affect its constitutional rights.
Dissenting -
Concurring in the judgment - Justice Alito
Agreed that NetChoice failed to prove the laws are facially unconstitutional and that the cases should be remanded, but disagreed with the majority's reasoning and its decision to opine on the merits. He characterized the majority's discussion of the merits as unnecessary and unsupported dicta, arguing the record is entirely undeveloped. Justice Alito contended that NetChoice failed to provide basic facts about which platforms are covered, what content they host, and how they actually moderate, making it impossible to determine if their conduct is expressive. He also criticized the majority for not seriously engaging with the states' argument that platforms could be regulated as common carriers.
Analysis:
This decision formally extends the 'editorial discretion' principle from traditional media (like newspapers in Miami Herald v. Tornillo) to the curated feeds of major social media platforms, recognizing their content moderation choices as a form of protected speech. However, by vacating and remanding on the technical grounds of an improper facial analysis, the Court avoided a definitive ruling on the laws' constitutionality, leaving that for lower courts to resolve on a more developed record. The opinion establishes a significant precedent that the government's desire to 'un-bias' private speech is not a legitimate interest that can overcome a platform's First Amendment rights. The ruling will force future litigation over tech regulation to be more specific, likely favoring narrower, as-applied challenges over broad facial attacks and requiring courts to conduct a granular analysis of a statute's impact on various digital services.
