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The Supreme Court in Moody v. NetChoice reviewed First Amendment challenges to laws in Florida and Texas that sought to regulate how social media platforms moderate their content, such as how and who they decide to ban. The court remanded the cases back to the lower courts, after saying that for NetChoice to succeed on facial challenges, it had to show more evidence that a substantial number of the laws' applications are unconstitutional. The opinion said a key question for lower courts was whether the laws intruded on a social media platform's editorial discretion. (AP Photo)

In Moody v. NetChoice, the U.S. Supreme Court identified what it called “the relevant constitutional principles” involving governmental regulation of social media platforms.  The case was a consolidation of two cases involving constitutional challenges to 2021 laws in Florida and Texas. These state laws regulated the content moderation choices of social media platforms, such as Facebook and YouTube. The motivation for these laws was that the social media platforms often discriminated against conservative speakers and viewpoints. 

The 11th U.S. Circuit Court of Appeals had granted a preliminary injunction, preventing enforcement of the Florida law, while the 5th U.S. Circuit Court of Appeals had denied a similar injunction against the Texas law. 

Supreme Court sends social media regulation case back to states

On appeal, the U.S. Supreme court vacated and remanded the judgments of both appeals courts. 

Writing for the court, Justice Elena Kagan emphasized the nature of NetChoice’s challenge to both laws as facial challenges.  (NetChoice is is a trade association of online businesses that advocates for free expression and free enterprise on the internet.) Kagan explained that to succeed on a facial challenge, a litigant must show that a substantial number of the law’s applications are unconstitutional compared with the law’s legitimate reach.  She wrote that the litigants “treated these cases more like as-applied claims than like facial ones.” 

Kagan said a key question for the courts below was whether the state laws intruded on the social media platforms’ editorial discretion.   She emphasized the error of the 5th Circuit’s analysis, writing: “The Fifth Circuit was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds.” 

Kagan relied on 1974 ruling invalidating Florida right of reply law

To Kagan, the key precedent was Miami Herald Publishing Co. v. Tornillo (1974) in which a Florida law required a newspaper to give a political candidate a right to reply when a newspaper attacked or criticized that candidate.  The Supreme Court invalidated the law as a violation of the newspaper’s right to editorial discretion.  

She identified three points for the lower courts to apply. 

  • First, “the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude.”   
  • The second point was that “none of that changes just because a compiler includes most items and excludes just a few.”  
  • The third point was that “the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas.” 

State control of social media likely on shaky constitutional ground

She later stressed that “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.”    

Reading the tea leaves, it appears that the state laws are on shaky constitutional ground.  

Justice Amy Coney Barrett authored a concurring opinion, agreeing that the 5th Circuit’s analysis was more flawed than the 11th Circuit’s but also warning that facial challenges to laws are disfavored, writing: “A facial challenge to either of these laws likely forces a court to bite off more than it can chew.” 

Justice Ketanji Brown Jackson also concurred, though she would have preferred the court to have exercised more restraint rather than articulate numerous constitutional principles.  

Justice Clarence Thomas also wrote a concurring opinion, though he concurred only in the judgment. He questioned — as he had in the past — whether First Amendment interests are weaker in the commercial speech context and urged application of the common carrier doctrine.   But, the bulk of his opinion focused on why facial challenges are “fundamentally at odds with Article III.” 

Justice Samuel Alito wrote the most extensive concurring opinion, though he also concurred only in the judgment.  He called the bulk of Justice Kagan’s opinion “nonbinding dicta” and offered another critique of NetChoice’s decision to proceed with a facial challenge. 

Alito warned that the court should proceed with caution when confronting constitutional principles to new technology. 

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