By Zoe Robert '25
On July 1, 2024, the Supreme Court of the United States issued its consolidated opinion in Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton – two cases affecting the future of social media. (1) The Court’s holding, however, was far less compelling than its dicta.
In the aftermath of former President Trump’s suspension on Twitter, Facebook and YouTube, Florida and Texas passed laws prohibiting social media giants from “censoring” what they post. More specifically, the laws are an attempt to prevent the social media giants from exercising editorial discretion to filter, prioritize, label, or omit conservative political views. (2) The laws also require social media companies to justify, in writing, their reasons for doing so. (3) Aside from the sheer impracticality of the explanatory provisions, NetChoice, a trade association whose members include Facebook and YouTube, argued that the so-called “no censorship” laws violated the First Amendment right to freedom of speech and challenged both state laws as facially unconstitutional. (4)
Specifically, in both cases, NetChoice argued that the ability to “filter, prioritize and label” (what the States term “censor”) third-party social media posts constitute editorial discretion under well-established First Amendment law and is, therefore, protected speech. (5) The states countered that social media companies function like common carriers and that their actions constitute conduct, not speech. (6) Alternatively, Texas argued that the state has a substantial interest in protecting diversity of ideas on the internet. (7) The Northern District of Florida agreed that NetChoice’s argument—that the editorial process of a social media company is protected speech—was likely to succeed and enjoined enforcement of the laws. (8) The State of Florida appealed, and the decision was upheld by the 11th Circuit. (9) Likewise, the Western District of Texas enjoined enforcement of the Texas law, but on appeal, the 5th Circuit Court vacated the injunction. (10)
Facing a conflict among the Circuits, the parties moved by Writ of Certiorari to the Supreme Court. The issues presented were:
Whether the laws’ “content-moderation” (or no censorship) provisions comply with the First Amendment; and
Whether the laws' explanatory provisions comply with the First Amendment.
The Supreme Court held that neither Circuit applied the correct constitutional analysis and remanded the cases to the respective District Courts. (11) In particular, the Court held that although NetChoice claimed it was making a facial (in all circumstances) challenge, the arguments only addressed how the laws were unconstitutional as applied to certain social media giants. (12) Surprisingly, the Court did not stop there.
In dicta, the Court discussed that even in the rapidly changing, virtual world of social media, basic First Amendment principles apply. In oral argument, Texas was in the hot seat. The Court remarked that the 5th Circuit had a “serious misunderstanding” of First Amendment precedent. Specifically, the Court stated:
First, presenting a curated and “edited compilation of [third party] speech” is itself protected speech (13)…And second, a State “cannot advance some points of view by burdening the expression of others” (14)…The Court has repeatedly held that ordering a party to provide a forum for someone else’s views implicates the First Amendment (15)…To give the 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. (16)
The Court rejected Texas’ argument that the “no censorship” laws are necessary to protect a substantial state interest in ideological balance, stating that one cannot substitute governmental regulation for the editorial process. (17) Notably, all Justices concurred in the holding. However, some considered the dicta unnecessary and premature.
Why does the Court’s non-legally binding dicta matter? There has been an aggressive move by political conservatives to regulate social media content; notwithstanding that any such regulation would also benefit the opposite end of the political spectrum. Furthermore, the Court’s dicta is highly persuasive and clarifies that content-based legislation is unlikely to survive First Amendment scrutiny. Any other result would substantially alter a platform’s message. With Texas’ main argument supporting its legislation having been preemptively rejected, it is unclear how they will proceed on remand.
Endnotes
Moody v. NetChoice, LLC, NetChoice, LLC v. Paxton, 603 U.S. 5 (2024).
Moody v. NetChoice, LLC, 2024 WL 3237685, 5
Ibid., 5
Ibid., 5
Ibid., 16
Ibid., 20 (Thomas, Concurring), 41 (Alito, Occurring)
Ibid., 8
Ibid., 5
Ibid., 5
Ibid., 5
Ibid., 3
Ibid., 8
Ibid., 10
Ibid., 16
Ibid., 2
Ibid., 17
Ibid., 258
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