Moody v. NetChoice, LLC

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Supreme Court of the United States
Moody v. NetChoice, LLC
Term: 2023
Important Dates
Argued: February 26, 2024
Decided: July 1, 2024
Outcome
vacated and remanded
Vote
9-0
Majority
Chief Justice John Roberts • Clarence Thomas • Samuel Alito • Sonia Sotomayor • Elena Kagan • Neil Gorsuch • Brett Kavanaugh • Amy Coney Barrett • Ketanji Brown Jackson
Concurring
Clarence Thomas • Samuel Alito • Amy Coney Barrett• Neil Gorsuch • Ketanji Brown Jackson

Moody v. NetChoice, LLC is a case that was decided by the Supreme Court of the United States on July 1, 2024, during the court's October 2023-2024 term. The case was argued before the Supreme Court of the United States on February 26, 2024.

In a ruling for both Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, the Supreme Court unanimously vacated and remanded the judgments of the United States Court of Appeals for the Eleventh Circuit, and the United States Court of Appeals for the Fifth Circuit for NetChoice, LLC v. Paxton. The Court held that neither the Fifth Circuit nor the Eleventh Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws that regulate large internet platforms. Justice Elena Kagan delivered the opinion of the court.[1] Click here for more information about the ruling.

HIGHLIGHTS
  • The issue: The case concerned the First Amendment and whether Florida state laws moderating social media content are constitutional, and whether social media platforms' decisions to host or deplatform content and users is protected speech.
  • The questions presented:

    "1. Whether the First Amendment prohibits a State from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so.
    "2. Whether the First Amendment prohibits a State from requiring social-media companies to notify and provide an explanation to their users when they censor the user’s speech."[2]

  • The outcome:In a ruling for both Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, the Supreme Court unanimously vacated and remanded the judgments of the United States Court of Appeals for the Eleventh Circuit, and the United States Court of Appeals for the Fifth Circuit for NetChoice, LLC v. Paxton. The Court held that neither the Fifth Circuit nor the Eleventh Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws that regulate large internet platforms.[1]


    • The case came on a writ of certiorari to the United States Court of Appeals for the Eleventh Circuit. To review the lower court's opinion, click here.

    Timeline

    The following timeline details key events in this case:[3]

    Background

    In 2021, Florida enacted state law SB 7072 - Social Media Platforms. According to the Governor of Florida Ron DeSantis' (R) website, the law provided that:[6]

    “
    • All Floridians treated unfairly by Big Tech platforms will have the right to sue companies that violate this law — and win monetary damages. This reform safeguards the rights of every Floridian by requiring social media companies to be transparent about their content moderation practices and give users proper notice of changes to those policies, which prevents Big Tech bureaucrats from “moving the goalposts” to silence viewpoints they don’t like.
    • The Attorney General of Florida can bring action against technology companies that violate this law, under Florida’s Unfair and Deceptive Trade Practices Act. If social media platforms are found to have violated antitrust law, they will be restricted from contracting with any public entity. That “antitrust violator” blacklist imposes real consequences for Big Tech oligopolies’ bottom line.
    • Big Tech is prohibited from de-platforming Floridian political candidates. The Florida Election Commission will impose fines of $250,000 per day on any social media company that de-platforms any candidate for statewide office, and $25,000 per day for de-platforming candidates for non-statewide offices. Any Floridian can block any candidate they don’t want to hear from, and that is a right that belongs to each citizen — it’s not for Big Tech companies to decide.[7]
    		 ”

    Netchoice, LLC (a trade association of online businesses) and the Computer & Communications Industry Association (CCIA) (a lobbying nonprofit group in the information and communications technology industries), collectively referred to here as "NetChoice" sued Florida in the United States District Court for the Northern District of Florida days after the bill was signed into law. NetChoice contended that the law was unconstitutional under 47 U.S.C. § 230 - Protection for private blocking and screening of offensive material, the First Amendment, and was unconstitutionally vague. The Northern District of Florida enjoined, or blocked Florida from enforcing any of S.B. 7072's disclosure or hosting rules.[8][9][10][11][12]

    On appeal, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit—Judges Kevin Newsom, Gerald Tjoflat, and Edward Carnes—affirmed the preliminary injunction in part, and vacated and remanded in part the decision of the United States District Court for the Northern District of Florida, holding:[5]

    “ Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube, or TikTok. But "whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary when a new and different medium for communication appears." Brown v. Ent. Merchs. Ass'n , 564 U.S. 786, 790, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) (quotation marks omitted). One of those "basic principles"—indeed, the most basic of the basic—is that "[t]he Free Speech Clause of the First Amendment constrains governmental actors and protects private actors." Manhattan Cmty. Access Corp. v. Halleck, ––– U.S. ––––, 139 S. Ct. 1921, 1926, 204 L.Ed.2d 405 (2019). Put simply, with minor exceptions, the government can't tell a private person or entity what to say or how to say it.


    The question at the core of this appeal is whether the Facebooks and Twitters of the world—indisputably "private actors" with First Amendment rights—are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida insists that they aren't, and it has enacted a first-of-its-kind law to combat what some of its proponents perceive to be a concerted effort by "the ‘big tech’ oligarchs in Silicon Valley" to "silenc[e]" "conservative" speech in favor of a "radical leftist" agenda. To that end, the new law would, among other things, prohibit certain social-media companies from "deplatforming" political candidates under any circumstances, prioritizing or deprioritizing any post or message "by or about" a candidate, and, more broadly, removing anything posted by a "journalistic enterprise" based on its content.

    We hold that it is substantially likely that social-media companies—even the biggest ones—are "private actors" whose rights the First Amendment protects, Manhattan Cmty., 139 S. Ct. at 1926, that their so-called "content-moderation" decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative. We further conclude that it is substantially likely that one of the law's particularly onerous disclosure provisions—which would require covered platforms to provide a "thorough rationale" for each and every content-moderation decision they make—violates the First Amendment. Accordingly, we hold that the companies are entitled to a preliminary injunction prohibiting enforcement of those provisions. Because we think it unlikely that the law's remaining (and far less burdensome) disclosure provisions violate the First Amendment, we hold that the companies are not entitled to preliminary injunctive relief with respect to them.[7]

    		”
    —Judge Kevin Newsom

    On September 21, 2022, Attorney General of Florida Ashley B. Moody (R) asked the U.S. Supreme Court to review the issues at stake in the case. On September 29, 2023, SCOTUS accepted the case to its merits docket for October Term 2023.

    Questions presented

    The petitioner presented the following questions to the court:[2]

    Questions presented:
    “ 1. Whether the First Amendment prohibits a State from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so.
    2. Whether the First Amendment prohibits a State from requiring social-media companies to notify and provide an explanation to their users when they censor the user’s speech.[7]     		”

    Oral argument

    Audio

    Audio of oral argument:[13]




    Transcript

    Transcript of oral argument:[14]

    Outcome

    In a ruling for both Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, the Supreme Court unanimously vacated and remanded the judgments of the United States Court of Appeals for the Eleventh Circuit, and the United States Court of Appeals for the Fifth Circuit for NetChoice, LLC v. Paxton. The Court held that neither the Fifth Circuit nor the Eleventh Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws that regulate large internet platforms. Justice Elena Kagan delivered the opinion of the court.[1]

    Opinion

    In the court's majority opinion, Justice Elena Kagan wrote:[1]

    “

    These are facial challenges, and that matters. To succeed on its First Amendment claim, NetChoice must show that the law at issue (whether from Texas or from Florida) ‘prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.’ Hansen, 599 U. S., at 770. None of the parties below focused on that issue; nor did the Fifth or Eleventh Circuits. But that choice, unanimous as it has been, cannot now control. Even in the First Amendment context, facial challenges are disfavored, and neither parties nor courts can disregard the requisite inquiry into how a law works in all of its applications. So on remand, each court must evaluate the full scope of the law’s coverage. It must then decide which of the law’s applications are constitutionally permissible and which are not, and finally weigh the one against the other. The need for NetChoice to carry its burden on those issues is the price of its decision to challenge the laws as a whole.

    But there has been enough litigation already to know that the Fifth Circuit, if it stayed the course, would get wrong at least one significant input into the facial analysis. The parties treated Facebook’s News Feed and YouTube’s homepage as the heartland applications of the Texas law. At least on the current record, the editorial judgments influencing the content of those feeds are, contrary to the Fifth Circuit’s view, protected expressive activity. And Texas may not interfere with those judgments simply because it would prefer a different mix of messages. How that matters for the requisite facial analysis is for the Fifth Circuit to decide. But it should conduct that analysis in keeping with two First Amendment precepts. First, presenting a curated and ‘edited compilation of [third party] speech’ is itself protected speech. Hurley, 515 U. S., at 570. And second, a State ‘cannot advance some points of view by burdening the expression of others.’ PG&E, 475 U. S., at 20. To give government that power is to enable it to control the expression of ideas, promoting those it favors and suppressing those it does not. And that is what the First Amendment protects all of us from.

    We accordingly vacate the judgments of the Courts of Appeals for the Fifth and Eleventh Circuits and remand the cases for further proceedings consistent with this opinion. [7]

    		”
    —Justice Elena Kagan[1]


    Concurring opinion

    Justice Barrett

    Justice Amy Coney Barrett filed a concurring opinion.

    In her concurring opinion, Justice Barrett wrote:[1]

    “

    A facial challenge to either of these laws likely forces a court to bite off more than it can chew. An as-applied challenge, by contrast, would enable courts to home in on whether and how specific functions—like feeds versus direct messaging—are inherently expressive and answer platform- and function-specific questions that might bear on the First Amendment analysis. While the governing constitutional principles are straightforward, applying them in one fell swoop to the entire social-media universe is not.[7]

    		”
    —Justice Amy Coney Barrett

    Justice Jackson

    Justice Ketanji Brown Jackson filed an opinion concurring in part and concurring in the judgment.

    In her concurring opinion, Justice Jackson wrote:[1]

    “

    These cases present a complex clash between two novel state laws and the alleged First Amendment rights of several of the largest social media platforms. Some things are already clear. Not every potential action taken by a social media company will qualify as expression protected under the First Amendment. But not every hypothesized regulation of such a company’s operations will necessarily be able to withstand the force of the First Amendment’s protections either. Beyond those broadest of statements, it is difficult to say much more at this time. With these records and lower court decisions, we are not able to adequately evaluate whether the challenged state laws are facially valid.[7]

    		”
    —Justice Ketanji Brown Jackson

    Justice Thomas

    Justice Clarence Thomas filed a concurring opinion.

    In his concurring opinion, Justice Thomas wrote:[1]

    “

    The Court has recognized the problems that facial challenges pose, emphasizing that they are ‘disfavored,’ Washington State Grange, 552 U. S., at 450, and ‘best when infrequent,’ Sabri, 541 U. S., at 608. The Court reiterates those sentiments today. Ante, at 9, 30. But, while sidelining facial challenges provides some measure of relief, it ignores the real problem. Because federal courts are bound by Article III’s case-or-controversy requirement, holding a statute unconstitutional as applied to nonparties is not simply disfavored—it exceeds the authority granted to federal courts. It is high time the Court reconsiders its facial challenge doctrine[7]

    		”
    —Justice Clarence Thomas

    Justice Alito

    Justice Samuel Alito filed an opinion concurring in the judgment, joined by Justices Clarence Thomas and Neil Gorsuch.

    In his concurring opinion, Justice Alito wrote:[1]

    “

    The only binding holding in these decisions is that NetChoice has yet to prove that the Florida and Texas laws they challenged are facially unconstitutional. Because the majority opinion ventures far beyond the question we must decide, I concur only in the judgment.[7]

    		”
    —Justice Samuel Alito

    Text of the opinion

    Read the full opinion here.

    October term 2023-2024

    See also: Supreme Court cases, October term 2023-2024

    The Supreme Court began hearing cases for the term on October 2, 2023. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[15]


    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 U.S. Supreme Court, "Moody v. NetChoice, LLC," accessed July 1, 2024
    2. ↑ 2.0 2.1 U.S. Supreme Court, "ATTORNEY GENERAL, STATE OF FLORIDA, ET AL., v. NETCHOICE, LLC, D.B.A. NETCHOICE, ET AL.," Cert. Granted September 29, 2023
    3. ↑ SCOTUSblog, "Moody v. NetChoice, LLC," accessed October 3, 2023
    4. ↑ The Eleventh Circuit vacated seven provisions as unconstitutional and affirmed five provisions as constitutional under Florida state law. Click the linked citation the list of findings, relevant legal statutes, and rulings.
    5. ↑ 5.0 5.1 U.S. Court of Appeals for the Eleventh Circuit, NetChoice, LLC v. Attorney Gen., decided May 23, 2022
    6. ↑ Governor Ron DeSantis, "Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech," May 24, 2021
    7. ↑ 7.0 7.1 7.2 7.3 7.4 7.5 7.6 7.7 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    8. ↑ U.S. Supreme Court, "Moody v. NetChoice, LLC ON PETITION FOR A WRIT OF CERTIORARI," filed September 21, 2022
    9. ↑ SCOTUSblog, "Florida’s effort to restore its contentious social media law arrives at the court," October 2, 2022
    10. ↑ SCOTUSblog, "Elon Musk, internet freedom, and how the Supreme Court might force big tech into a catch-22," November 6, 2022
    11. ↑ SCOTUSblog, "Justices take major Florida and Texas social media cases," September 29, 2023
    12. ↑ SCOTUSblog, "Court schedules February argument session," January 5, 2024
    13. ↑ Supreme Court of the United States, "Oral Argument - Audio," argued February 26, 2024
    14. ↑ Supreme Court of the United States, "Oral Argument - Transcript," argued February 26, 2024
    15. ↑ SupremeCourt.gov, "The Supreme Court at Work: The Term and Caseload," accessed January 24, 2022
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