Caseflicks

Supreme Court of the United States • 2024

Moody v. NetChoice, LLC

603 U.S. 707

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Takeaway

In short, this case did not finally invalidate either state law, but it confirmed that a platform's curated main feed can be protected editorial speech and that government may not force a different ideological mix simply to rebalance private expression.

Background

In 2021, Florida and Texas enacted laws regulating large social-media platforms and other covered internet services. Both laws restricted platforms' ability to remove, label, demote, prioritize, or otherwise moderate users' posts. Both also required individualized explanations when a platform removed or altered content. Florida's law applied broadly to platforms meeting revenue or user thresholds; Texas's law barred covered platforms from “censoring” users or their expression based on viewpoint.

NetChoice and the Computer & Communications Industry Association, whose members include Facebook and YouTube, brought facial First Amendment challenges to both laws. District courts preliminarily enjoined the relevant provisions. The Eleventh Circuit largely affirmed the injunction against Florida's law, concluding that platforms' content-moderation decisions were protected editorial judgments and that Florida's individualized-explanation mandate was likely unduly burdensome. The Fifth Circuit reversed the injunction against Texas's law, holding that the platforms were not speaking when they moderated user content and that Texas could promote a diversity of viewpoints. The Supreme Court granted review to resolve the conflict.

Issues

Issue #1

Whether the courts of appeals properly resolved NetChoice's facial First Amendment challenges to the Florida and Texas laws.

Holding

No. Both judgments were vacated because neither court conducted the required facial-challenge analysis.

Reasoning

A facial First Amendment challenge requires more than showing that a statute is unconstitutional in an important application. NetChoice had to show that the laws prohibit a substantial amount of protected speech in relation to their plainly legitimate sweep. That demanding inquiry requires identifying the laws' full coverage, determining which applications are unconstitutional, and comparing those applications with the constitutional ones.

The lower courts and the parties focused primarily on Facebook's News Feed, YouTube's homepage, and similar major social-media feeds. But the statutes may reach a wider and more varied set of services and functions, including direct messaging, email filtering, customer reviews, marketplaces, payment services, and ride-sharing platforms. Those functions may raise materially different First Amendment questions.

The Supreme Court could not perform that fact-intensive analysis in the first instance. The scope of the statutes, the relevant platform functions, and the factual record were insufficiently developed. On remand, the Eleventh and Fifth Circuits must determine what each law covers, assess the First Amendment status of each application, and weigh the unconstitutional applications against the constitutional ones.

Issue #2

Whether Texas's viewpoint-based limits on content moderation implicate the First Amendment when applied to Facebook's News Feed and YouTube's homepage.

Holding

Yes. On the existing record, Texas's law likely regulates protected editorial discretion when applied to those curated feeds.

Reasoning

The First Amendment protects an entity that compiles and curates third-party speech into an expressive product. Under decisions such as Miami Herald v. Tornillo, Pacific Gas & Electric, Turner Broadcasting, and Hurley, the government cannot force a speaker engaged in such expression to carry messages the speaker prefers to exclude when doing so changes the speaker's own expressive offering.

Facebook's News Feed and YouTube's homepage are not merely passive conduits on the current record. The platforms select, rank, label, demote, and remove content under their Community Standards and Guidelines. Their choices about what content to display, what to make prominent, and what to exclude create a distinctive compilation of third-party expression.

The fact that platforms host enormous quantities of user content does not forfeit their editorial rights. Hurley established that a compiler may retain First Amendment protection even if it excludes only a limited set of messages. Nor does protection depend on users attributing every individual post to the platform; the expressive product is the platform's curated feed as a whole.

The Court did not hold that every platform or every function is expressive. A direct-messaging service, a user-driven service, or another online function may involve less or no editorial expression. Those distinctions must be examined platform by platform and function by function on remand.

Issue #3

Whether Texas may justify its viewpoint-neutrality mandate for curated feeds by asserting an interest in improving ideological balance or preventing private viewpoint discrimination.

Holding

No. Texas's asserted interest in changing the viewpoint mix on major platforms' curated feeds cannot sustain the law, even under intermediate scrutiny.

Reasoning

Even under the less demanding intermediate-scrutiny framework, a regulation affecting expression must further a substantial governmental interest unrelated to suppressing free expression. Texas's stated objective was to correct what it viewed as an ideological imbalance on major platforms, particularly an alleged suppression of conservative views.

The First Amendment does not allow a State to alter a private speaker's editorial choices simply because the State believes the marketplace of ideas would be better balanced if different views were displayed. Cases such as Tornillo, Pacific Gas & Electric, and Hurley reject the proposition that government may burden one speaker's expression to amplify another's.

The Court distinguished Turner, where must-carry rules served interests in preserving local broadcast television and competition rather than in changing the content or ideological balance of speech. Nothing in the decision forecloses other forms of social-media regulation that rest on valid, content-unrelated interests. But Texas may not force Facebook's or YouTube's principal feeds to present a different mix of viewpoints merely because it prefers that result.

Issue #4

Whether the individualized-explanation provisions of the Florida and Texas laws were properly resolved on a facial basis.

Holding

No. The Court did not decide their facial validity and instructed the lower courts to assess them across their full range of applications.

Reasoning

The explanation provisions require covered platforms to notify users and give reasons when they remove or alter content. Because such mandates compel disclosures, their constitutionality depends in part on whether they unduly burden protected expression under Zauderer.

The burden may differ sharply depending on the platform and function at issue. A disclosure obligation tied to a highly expressive, heavily curated feed could raise different concerns from one applied to a function that does not itself involve protected editorial judgment. The lower courts must evaluate those differences rather than treat every regulated service alike.

Because the courts below did not identify the statutes' complete coverage or compare constitutional and unconstitutional applications, the Supreme Court vacated their rulings on these provisions as well.

Concurrences

Justice Barrett

Reasoning

Justice Barrett joined the Court's opinion and agreed that the Eleventh Circuit generally understood editorial discretion correctly while the Fifth Circuit did not. She emphasized, however, that NetChoice's facial challenges were an especially poor vehicle for resolving these disputes. An as-applied challenge focused on Facebook's News Feed or YouTube's homepage would permit a court to decide concrete questions without trying to address every function of every covered service.

She stressed that whether a particular function is inherently expressive may depend on how its algorithms operate. An algorithm implementing a human decision to exclude a particular viewpoint may be protected editorial judgment, even if the algorithm carries out most of the removals. But an algorithm that merely supplies each user with material the user is predicted to like may present a different constitutional question.

Justice Barrett also identified unresolved questions about artificial intelligence and foreign ownership. If AI itself determines what content is hateful or should be removed, the connection between a moderation decision and a human speaker's protected choice may be attenuated. Likewise, the First Amendment analysis may be affected if content policies are directed by foreign owners or executives who lack the same constitutional protections as American persons and corporations.

Justice Jackson

Reasoning

Justice Jackson agreed that the judgments should be vacated because neither lower court adequately addressed the demanding requirements for a facial challenge. She also agreed that the Eleventh Circuit stated First Amendment precedent more accurately than the Fifth Circuit.

She would not have gone further to preview how the First Amendment applies to Facebook's News Feed or YouTube's homepage. In her view, the records were undeveloped, the cases involved novel technology, and the Court should avoid deciding constitutional questions beyond what was necessary to resolve the facial challenges.

Justice Jackson emphasized that courts must analyze regulated conduct at a high degree of specificity. They should not ask whether social-media companies generally are speakers, or whether an activity is broadly analogous to a newspaper. Instead, they must determine how a particular platform function actually operates before deciding whether that function is expression protected by the First Amendment.

Justice Thomas

Reasoning

Justice Thomas agreed that NetChoice had not established that either statute was facially unconstitutional. He objected to the Court's discussion of Facebook's News Feed and YouTube's homepage, which he viewed as unnecessary dicta that repeated the same error for which the Court criticized the lower courts: examining only a small subset of the statutes' possible applications on an incomplete record.

He urged the lower courts to consider the common-carrier doctrine. Businesses that hold themselves out as serving all comers have historically been subject to special obligations of nondiscrimination, and that doctrine could bear on whether particular platforms may be regulated. But the doctrine, like the First Amendment analysis, requires identifying the regulated parties and the specific conduct at issue.

Justice Thomas also questioned the Court's facial-challenge doctrine more fundamentally. In his view, Article III authorizes federal courts to decide concrete disputes between parties, not to declare a statute unconstitutional as applied to nonparties or hypothetical future circumstances. He argued that facial invalidation, including First Amendment overbreadth doctrine, exceeds the proper judicial role and should be reconsidered.

Although he accepted reliance on Zauderer because the parties had not contested it at the relevant stage, Justice Thomas reiterated his skepticism that compelled factual disclosures in commercial settings receive meaningfully weaker First Amendment protection than direct restrictions on speech.

Justice Alito

Reasoning

Justice Alito, joined by Justices Thomas and Gorsuch, agreed only with the judgment that NetChoice failed to prove facial unconstitutionality. He regarded the Court's discussion of the application of Texas's law to Facebook's News Feed and YouTube's homepage as nonbinding dicta, unnecessary to decide the case and inadequately supported by the record.

He argued that a party claiming a right to resist a hosting requirement must establish more than that it handles others' speech. In his view, the party must show that it exercises editorial discretion, that its compilation conveys some collective message of its own, and that compelled inclusion would affect that message. He maintained that passive receptacles, common carriers, and services open to all speakers may not satisfy those requirements.

Justice Alito faulted NetChoice for failing to identify all platforms and functions covered by the statutes, the content appearing on each service, and the details of their moderation systems. These omissions prevented a reliable assessment of whether the laws have a plainly legitimate sweep. He particularly questioned whether automated or AI-driven moderation is necessarily equivalent to the human editorial judgment involved in a traditional newspaper.

He also criticized the majority for giving too little attention to the States' common-carrier argument and to other interests Texas asserted, including preventing discrimination based on a user's Texas location or off-platform expression. Those questions, he reasoned, should be developed in an as-applied case rather than resolved through broad assumptions about social-media platforms.

On the disclosure provisions, Justice Alito concluded that NetChoice had not shown an undue burden across all covered platforms. Many platforms already provide notice-and-appeal systems or comply with similar European Union requirements. Whether individualized explanations chill protected speech depends on facts NetChoice had not supplied.