8
MOODY v. NETCHOICE, LLC
Opinion of the Court
“editorial discretion.” 34 F. 4th 1196, 1209, 1216 (2022).
When a social-media platform “removes or deprioritizes a
user or post,” the court explained, it makes a “judgment
rooted in the platform’s own views about the sorts of content
and viewpoints that are valuable and appropriate for dissemination.” Id., at 1210. The court concluded that the
content-moderation provisions are unlikely to survive “intermediate—let alone strict—scrutiny,” because a State has
no legitimate interest in counteracting “private ‘censorship’ ” by “tilt[ing] public debate in a preferred direction.”
Id., at 1227–1228. Similarly, the Eleventh Circuit thought
the statute’s individualized-explanation requirements
likely to fall. Applying the standard from Zauderer v. Office
of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S.
626 (1985), the court held that the obligation to explain
“millions of [decisions] per day” is “unduly burdensome and
likely to chill platforms’ protected speech.” 34 F. 4th, at
1230.
The Fifth Circuit disagreed across the board, and so reversed the preliminary injunction before it. In that court’s
view, the platforms’ content-moderation activities are “not
speech” at all, and so do not implicate the First Amendment. 49 F. 4th 439, 466, 494 (2022). But even if those activities were expressive, the court continued, the State
could regulate them to advance its interest in “protecting a
diversity of ideas.” Id., at 482 (emphasis deleted). The
court further held that the statute’s individualizedexplanation provisions would likely survive, again even assuming that the platforms were engaged in speech. Those
requirements, the court maintained, are not unduly burdensome under Zauderer because the platforms needed
only to “scale up” a “complaint-and-appeal process” they already used. 49 F. 4th, at 487.
We granted certiorari to resolve the split between the
Fifth and Eleventh Circuits. 600 U. S. ___ (2023).