Introduction

In a landmark decision on July 1, 2024, the Supreme Court of the United States addressed significant First Amendment challenges posed by the states of Florida and Texas against large social-media platforms. The case, ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, ET AL., PETITIONERS v. NETCHOICE, LLC, DBA NETCHOICE, ET AL., revolved around newly enacted statutes in both states that sought to regulate content moderation practices of major internet platforms like Facebook and YouTube.

The core issues centered on the states' attempts to limit the platforms' ability to filter, prioritize, and label user-generated content, coupled with mandates for platforms to provide individualized explanations when altering or removing posts. NetChoice LLC, representing industry trade associations, challenged these laws on the grounds that they violated the First Amendment's protections of editorial discretion.

Lower courts in the Eleventh and Fifth Circuits delivered conflicting rulings: the Eleventh Circuit upheld preliminary injunctions against Florida's law, citing concerns over First Amendment scrutiny, while the Fifth Circuit reversed similar injunctions in Texas, arguing that content moderation does not constitute speech. The Supreme Court ultimately vacated these decisions, remanding the cases for a proper facial analysis under First Amendment standards.

Summary of the Judgment

The Supreme Court vacated the judgments of both the Eleventh and Fifth Circuits, highlighting procedural shortcomings in their analyses of the facial First Amendment challenges. The Court emphasized that neither appellate court adequately assessed whether the statutes in question prohibit a substantial amount of protected speech relative to their legitimate aims.

Specifically, the Court pointed out that content moderation by social-media platforms involves expressive choices akin to editorial discretion in traditional media. By restricting these choices based on viewpoint, the Florida and Texas laws potentially infringe upon the platforms' First Amendment rights. However, due to the lower courts' failure to conduct a comprehensive facial analysis encompassing all possible applications of the laws, the Supreme Court deemed it necessary to remand the cases for further consideration.

Analysis

Precedents Cited

The Court's analysis heavily relied on several landmark cases that establish the relationship between government regulation and editorial discretion:

• MIAMI HERALD PUBLISHING CO. v. TORNILLO (1974): Held that a Florida law requiring newspapers to provide a right of reply to political candidates violated the First Amendment by interfering with editorial control.
• Pacific Gas & Electric Co. v. Public Utility Commission of California (1986): Determined that compelling a private utility to include material from a consumer-advocacy group in its newsletter infringed upon its editorial judgment.
• TURNER BROADCASTING SYSTEM, INC. v. FCC (1994): Addressed federal "must-carry" rules, emphasizing that such regulations implicate the First Amendment when they interfere with editorial discretion.
• Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995): Established that organizing a parade involves expressive activity, and the state cannot compel organizers to include specific viewpoints.

These cases collectively underscore that when entities engage in compiling and curating third-party speech into an expressive product, governmental interference via regulation must withstand rigorous First Amendment scrutiny.

Legal Reasoning

The Supreme Court's decision is predicated on the principle that content moderation by social-media platforms is inherently expressive. This means that the platforms exercise editorial discretion similar to traditional media outlets, shaping the range and nature of the content their users encounter.

The Court emphasized that facial challenges, which assert that a law is unconstitutional in all its applications, impose a high burden on plaintiffs. NetChoice's approach to litigate these statutes as facial challenges is particularly stringent, requiring them to demonstrate that no circumstances exist under which the laws would be constitutionally valid.

However, both the Eleventh and Fifth Circuits failed to perform this comprehensive analysis. The Eleventh Circuit appropriately recognized the First Amendment implications but concluded, perhaps prematurely, that the content moderation provisions were unlikely to survive scrutiny. In contrast, the Fifth Circuit erroneously dismissed the expressive nature of content moderation, asserting that it did not constitute speech, thereby neglecting key First Amendment protections.

Consequently, the Supreme Court vacated these decisions, mandating that the lower courts undertake a full facial analysis. This entails evaluating the complete scope of the statutes, distinguishing between their constitutional and unconstitutional applications, and determining whether the latter significantly outweigh the former.

Impact

This Supreme Court ruling sets a critical precedent for how facial First Amendment challenges against state regulations on internet platforms must be approached. Key implications include:

• Comprehensive Legal Scrutiny: Lower courts are now compelled to perform a thorough analysis of all potential applications of such laws, ensuring that regulations do not disproportionately infringe upon protected speech.
• Editorial Discretion Affirmed: The decision reinforces the notion that content moderation is a form of expressive activity protected by the First Amendment, aligning it with traditional forms of editorial control in media.
• Judicial Restraint in Facial Challenges: By vacating and remanding, the Court underscores the importance of adhering to procedural standards, particularly when dealing with broad facial challenges that could otherwise disrupt the balance of power between the judiciary and the legislative/executive branches.
• Guidance for Future Litigation: The ruling provides a clear framework for how courts should handle similar cases in the future, emphasizing the need for detailed factual inquiries and balanced constitutional assessments.

Complex Concepts Simplified

Facial Challenges

Facial Challenge: A legal argument asserting that a law is unconstitutional in all its possible applications, regardless of how it is implemented or who is affected.

In this case, NetChoice argued that Florida and Texas statutes regulating social-media platforms violate the First Amendment in every conceivable scenario.

First Amendment Protections of Editorial Discretion

The First Amendment protects not only the free speech of individuals but also the editorial choices of entities that curate or compile content. For example, newspapers have the right to decide which articles to publish and which to exclude.

Similarly, social-media platforms like Facebook and YouTube exercise editorial discretion through their content moderation practices, determining what user-generated content is displayed, prioritized, or removed.

Content Moderation

Content Moderation: The process by which social-media platforms review, filter, and manage user-generated content to ensure it complies with their community standards and policies.

This includes deleting inappropriate posts, demoting content that doesn't align with platform guidelines, and labeling content for transparency.

Conclusion

The Supreme Court's decision in Moodie v. NetChoice marks a pivotal moment in the intersection of technology regulation and First Amendment rights. By vacating the lower courts' rulings and remanding the cases, the Court has mandated a more rigorous and comprehensive analysis of facial challenges to state laws regulating social-media platforms. This ensures that such regulations do not unduly infringe upon the editorial discretion and expressive freedoms of major internet platforms, thereby safeguarding the broader landscape of free expression in the digital age.