Moody v. NetChoice, LLC
603 U.S. 707
SCOTUS
2024

Background

  • In 2021 Florida and Texas passed laws restricting how large online platforms moderate third‑party content and requiring individualized explanations when content is removed or altered.
  • NetChoice (trade associations whose members include Facebook and YouTube) brought facial First Amendment challenges and obtained preliminary injunctions in district courts; Eleventh Circuit kept Florida injunction, Fifth Circuit reversed the Texas injunction.
  • The Eleventh Circuit treated platforms’ editorial choices as protected speech and found likely First Amendment violations; the Fifth Circuit held platforms’ moderation was not speech and upheld Texas’s law in part.
  • The Supreme Court granted certiorari to resolve the circuit split, vacated both appellate rulings, and remanded because neither court properly conducted the required facial‑challenge analysis of the statutes’ full scope.
  • The Court explained the proper facial analysis: identify the statutes’ full coverage, determine which applications implicate the First Amendment (editorial discretion) or unduly burden speech (Zauderer), then compare unconstitutional applications to constitutional ones to decide facial invalidity.
  • The Court also held—on the existing record—that when applied to major platforms’ curated main feeds (e.g., Facebook News Feed, YouTube homepage) the Texas law likely regulates protected editorial choices and that Texas’s asserted interest in rebalancing viewpoints cannot justify such compulsion.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Standard for facial First Amendment challenge NetChoice: statutes are facially invalid because many applications burden protected speech States: NetChoice failed to show substantial unconstitutional applications; facial relief inappropriate Court: facial challengers must show a substantial number of unconstitutional applications relative to the laws’ plainly legitimate sweep; lower courts failed to perform this analysis and remand is required
Whether platforms’ content‑moderation (selection, ranking, labeling, removal) is "speech" NetChoice: platforms exercise editorial discretion compiling third‑party content, so moderation is protected Texas/Florida: moderation is conduct/neutral hosting, not expressive; can be regulated Court: platforms’ curation of main feeds is likely expressive (editorial) and First Amendment applies; Fifth Circuit’s view that it is not speech was incorrect (on current record)
Whether States’ interest in rebalancing viewpoints justifies laws limiting editorial choices NetChoice: States cannot force private speakers to carry disfavored viewpoints States: interest in protecting diversity of ideas and preventing viewpoint discrimination justifies regulation Court: the interest in altering private speakers’ mix of viewpoints is related to suppression of expression and cannot justify compelling platforms to host or promote particular views
Individualized‑explanation requirements (Zauderer) NetChoice: burdensome disclosures chilling editorial decisions and impractical given volume States: disclosure/notice and appeal requirements are factual, implementable, and allowed under Zauderer Court: Zauderer framework may apply to disclosure provisions, but whether disclosures are unduly burdensome must be assessed across all covered platforms/functions on remand; lower courts did not complete that inquiry

Key Cases Cited

  • Reno v. ACLU, 521 U.S. 844 (1997) (discusses internet’s transformation and free‑speech implications)
  • Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (compelled right‑of‑reply for newspapers violates editorial control)
  • Pacific Gas & Electric Co. v. Public Util. Comm’n of Cal., 475 U.S. 1 (1986) (government cannot force a private communicator to carry speech that alters its message)
  • Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (private parties’ editorial discretion over program carriage implicates the First Amendment)
  • Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (Turner II) (must‑carry rules upheld on remand where tailored to important, content‑neutral interests)
  • Hurley v. Irish‑American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) (organizers’ selection in parades is protected editorial choice)
  • Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (compelled disclosures of factual, uncontroversial information in commercial speech reviewed under a relaxed standard)
  • PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) (no editorial speech where host is not itself engaged in expression; compelled access permissible)
  • Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006) (hosting recruiters did not implicate law schools’ First Amendment rights where hosting was not expressive)
  • United States v. Salerno, 481 U.S. 739 (1987) (facial challenges ordinarily require showing no set of circumstances where the statute is valid)
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