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Cite as: 603 U. S. ____ (2024) 1 BARRETT, J., concurring SUPREME COURT OF THE UNITED STATES _________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, ET AL., PETITIONERS 22–277 v. NETCHOICE, LLC, DBA NETCHOICE, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT NETCHOICE, LLC, DBA NETCHOICE, ET AL., PETITIONERS 22–555 v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [July 1, 2024] JUSTICE BARRETT, concurring. I join the Court’s opinion, which correctly articulates and applies our First Amendment precedent. In this respect, the Eleventh Circuit’s understanding of the First Amendment’s protection of editorial discretion was generally correct; the Fifth Circuit’s was not. But for the reasons the Court gives, these cases illustrate the dangers of bringing a facial challenge. If NetChoice’s members are concerned about preserving their editorial discretion with respect to the services on which they have focused throughout this litigation—e.g., Facebook’s Newsfeed and YouTube’s homepage—they would be better served by bringing a First Amendment challenge as applied to those functions. Analyzing how the First Amendment bears on

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Moody v. NetChoice

Case Law

Country

United States

Country Location

Latitude: 39.778231903243785

Longitude: -100.8801256788983

Country Location (linked Case Law): United States

Decision Date: Jul 1, 2024

Case Status: In progress

Case Outcome (Procedural)

Reversed and Remanded

Keywords

Content Moderation
Social Media

Judicial Body: Supreme Court (court of final appeal)

Court Name: U.S. Supreme Court

Case Number: 22–277 and 22–555

Case Summary: The U.S. Supreme Court held that the Fifth and Eleventh Circuit Courts of Appeals failed to adequately analyze the facial First Amendment challenges to the constitutionality of laws enacted by Florida and Texas regulating content moderation on social media platforms. The states of Florida and Texas enacted two laws limiting content moderation on digital platforms and social networks, prohibiting “censorship” based on users’ views, and requiring companies to provide detailed explanations to users about content moderation decisions. Petitioner NetChoice—a coalition of companies that own digital platforms and social networks—filed a facial challenge to these laws, arguing that they violated the First Amendment. The states of Florida and Texas argued that the rules were designed to balance the marketplace of ideas on social networks. Two separate district courts granted preliminary injunctions halting the enforcement of both laws. The Eleventh Circuit Court affirmed the injunction against the law in Florida, holding that it likely violated the First Amendment. At the same time, the Fifth Circuit Court vacated the injunction against the law in Texas, arguing that content moderation is a form of censorship, not a form of speech protected by the First Amendment.

The U.S. Supreme Court reversed both circuit courts’ decisions and remanded the cases for further proceedings, emphasizing that the First Amendment protects the editorial discretion of social media platforms. The Court considered that a facial First Amendment challenge to a statute requires the petitioner to demonstrate that a substantial portion of the statute’s applications is unconstitutional. In this regard, the Court held that the broad scope of the contested laws, which deal with various activities beyond content moderation, required a more precise analysis to determine their constitutionality. In addition, the Court held that altering the private editorial decisions of social media platforms violated the First Amendment, which prohibits the government from imposing its own prerogatives regarding the proper balance of ideas on the private sector.

Case Significance: Expands Expression

The Supreme Court’s decision expands freedom of expression by reaffirming the First Amendment’s protection of editorial discretion in favor of social media platforms. This ruling, following an established case law pattern, hinders government interference in the editorial choices of private entities, thereby strengthening safeguards against compelled speech on online social media platforms. This decision upholds the principle by which the government cannot compel platforms to host content in ways that contradict their editorial policies—in the name of balancing the marketplace of ideas. Thus, it broadens the scope of protected speech in online spaces.

It is now up to the lower courts to assess the facial challenge and consider the more complex questions surrounding the scope of the laws and which aspects of the content moderation and disclosure provisions violate the First Amendment. There are still many pending issues, not least whether certain forms of algorithmic sorting may be deemed non-expressive and hence open to regulation. The rejection of this facial challenge has led some court watchers to posit that it could lead to a range of as-applied challenges to many of the aspects of the provisions, which will make their way through the courts over the coming years. Time will tell whether this will result in better laws, but the time has come for courts to apply First Amendment jurisprudence to evolving technologies.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Source URL: Global Freedom of Expression

Collection

Columbia

Date Updated: Oct 18, 2024

Primary Documents

SCOTUS Opinion.pdf
English
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Supporting files

pdf

Brief Of Amici Curiae Article 19: Global Campaign For Free Expression, International Justice Clinic At University Of California-Irvine School Of Law, And Open Net Association, Inc., In Support Of Respondents In No. 22-277 And Petitioners In No. 22-555.pdf373.56 kB

pdf

Brief of The Knight First Amendment Institute at Columbia University as Amicus Curiae in Support of Neither Party.pdf346.82 kB

CYRILLA: Global Digital Rights Law

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Moody v. NetChoice

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