Today, the U.S. Supreme Court announced its decision in Moody v. NetChoice / NetChoice v. Paxton. The Court explained that the First Amendment prevents states from overriding the content moderation and editorial policies of social media companies, but remanded the cases to the lower courts to consider how the content moderation laws passed by Texas and Florida might apply to other kinds of services with different First Amendment considerations, such as payment processing platforms.
Public Knowledge previously filed a brief in this case, arguing that social media platforms cannot be designated as “common carriers” as a way for politicians in those states to promote the speech of their political allies at the expense of social media users nationwide, and that forbidding social media platforms from enforcing their content moderation policies violates the First Amendment.
The following can be attributed to John Bergmayer, Legal Director at Public Knowledge:
“Today, the Court clearly explained that the government may not override the content moderation policies of social media platforms. It explained that the attempts by the states of Florida and Texas to control what people see in their feeds, to promote conservative voices at the expense of other speakers, and to censor the editorial judgment and policies of private media companies are unconstitutional. In doing this, the Court has simply restated existing First Amendment law. But as Justice Kagan, writing for the Court, noted, the need to do so is ‘especially stark for the Fifth Circuit,’ whose opinion upholding Texas’ law was based on ‘a serious misunderstanding of First Amendment precedent and principle.’
“Those who support free expression online, including the ability for competing social media platforms to adopt different editorial policies, can breathe a sigh of relief. So should those who support the efforts of platforms to combat hate speech, disinformation, and other harmful content. As we explained in our brief, the Texas and Florida laws ‘would have deleterious effects on the functionality and usefulness of social media platforms, including requiring or incentivizing them to publish pro-terrorist content, hate speech, spam, Holocaust denial, snake-oil “medical” claims, lies about the time and place of elections, and fraud.’ Requiring that social media companies carry content of this kind does not promote free expression – it corrodes it. At the same time, the First Amendment also protects platforms that choose to adopt more hands-off policies in some areas, such as Elon Musk’s X. Users should be able to use social media platforms that take different approaches to content moderation, not one-size-fits-all policies imposed by politicians.
“As became clear during oral argument on these cases in February, the platform regulation laws passed by Texas and Florida were targeted at major social media platforms, but written in such a broad and careless way that they could apply to communications and commerce platforms of all kinds: messaging apps, email, online marketplaces, payment platforms, even ride-hailing services. While the Court today has held that the major application, and primary purpose of these laws, is unconstitutional, the courts below and the parties did not sufficiently consider how and whether the laws might be applied in narrower ways to other services. For example, a law prohibiting a payment processor or a transportation service from denying service to someone based on their political viewpoint may be constitutional and not raise the same First Amendment concerns about restricting editorial discretion.
“Further proceedings below on these points is likely a good thing. While many were worried that the Court would radically rewrite First Amendment law to permit state meddling in social media feeds, another concern was that an overly broad opinion by the Court overturning the state laws would imperil nondiscrimination, public accommodation, or common carrier laws in general. Thankfully, both fears were unfounded. Nothing in the Court’s First Amendment analysis prevents reasonable public interest regulation of internet platforms or imperils policies like net neutrality, since these policies do not seek to substitute the views of government for First Amendment-protected, private editorial and content moderation policies.”
You may view the amicus brief for more information on this case.
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