603 U.S. 707
SCOTUS2024Background
- In 2021 Florida (S.B. 7072) and Texas (H.B. 20) enacted laws restricting how large online platforms may moderate, prioritize, label, or remove third‑party content and requiring individualized explanations when content is altered or removed.
- NetChoice (trade association for major platforms) brought facial First Amendment challenges to both statutes; district courts preliminarily enjoined each law. The Eleventh Circuit upheld the injunction for Florida; the Fifth Circuit reversed the injunction for Texas, creating a circuit split.
- Central factual focus below (and before the Supreme Court) was major platforms’ curated, algorithmic main feeds (e.g., Facebook News Feed, YouTube homepage); record and briefing did not fully identify all covered platforms, functions, or how each moderates content.
- The parties litigated facial invalidity (challenge to the statutes as a whole), requiring NetChoice to show the laws prohibit a substantial amount of protected speech relative to any plainly legitimate applications.
- The Supreme Court vacated both circuit opinions and remanded because neither court performed the required facial analysis of the statutes’ full scope and range of applications before resolving First Amendment questions on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard for a facial First Amendment challenge | NetChoice: statutes are facially invalid because they broadly restrict platforms’ editorial discretion across many applications | States: NetChoice failed to show facial invalidity; courts must consider full statutory scope and threshold issues | Court: Facial challengers must show the statute prohibits a substantial amount of protected speech relative to its plainly legitimate sweep; lower courts failed to perform that analysis and must do so on remand |
| Whether platforms’ content‑moderation of main feeds is "speech"/editorial conduct | NetChoice: moderation, curation, ranking, labeling and removals on main feeds are editorial, expressive acts protected by the First Amendment | Texas/Florida: moderation is conduct or neutral hosting, not the platforms’ own speech; regulation does not trigger First Amendment | Court: On the current record, moderation of curated main feeds (e.g., News Feed, homepage) implicates editorial discretion and is protected; Fifth Circuit erred to the extent it held otherwise; but full scope must be assessed on remand |
| Whether States’ asserted interest (balancing marketplace of ideas) can justify the laws | NetChoice: state interest is pretext to force platforms to host certain viewpoints; unconstitutional | States: interest is to ensure diversity of ideas and prevent viewpoint discrimination by platforms | Court: A State may not pursue an interest whose effect is to suppress or alter private speech to achieve viewpoint balance; that interest is closely related to suppression and cannot justify the content‑moderation restrictions at issue (as applied to main feeds) |
| Individualized‑explanation / disclosure requirements (Zauderer) | NetChoice: forcing explanations for millions of moderation decisions is unduly burdensome and chills speech | States: disclosures are factual, implementable (complaint/appeal systems), and permissible under Zauderer | Held: Review required under Zauderer where applicable; lower courts must assess on remand whether disclosure rules are reasonably related to governmental interests and whether they unduly burden expression; current record insufficient for facial resolution |
Key Cases Cited
- Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974) (compelled right‑of‑reply infringed newspaper editorial control)
- Pacific Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (state could not force a utility to carry opposing views in its newsletter because it would alter the utility’s message)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (Turner I) (must‑carry rules implicate cable operators’ editorial discretion)
- Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (Turner II) (upholding must‑carry on remand where regulation furthered substantial non‑speech interests)
- Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) (parade organizers’ selection of participants is protected editorial choice)
- Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985) (compelled disclosure of factual, uncontroversial information in commercial speech reviewed under a relaxed test)
- United States v. Hansen, 599 U.S. 762 (2023) (facial challenges require courts to determine a statute’s coverage before weighing unconstitutional applications)
- Americans for Prosperity Found. v. Bonta, 594 U.S. 595 (2021) (facial First Amendment challenges succeed only if statute prohibits a substantial amount of protected speech relative to its plainly legitimate sweep)
- PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) (property owner’s forum was not expressive activity; state could require access for pamphleteers)
- Rumsfeld v. FAIR, 547 U.S. 47 (2006) (law schools’ hosting of recruiters did not constitute protected expression for First Amendment exclusion claim)
- United States v. O’Brien, 391 U.S. 367 (1968) (intermediate scrutiny test for conduct regulation requiring substantial government interest unrelated to suppression of speech)