The NetChoice Remand: Moody v. NetChoice (2024)

Work in progress

This case is under active development. All pages are being written, expanded, and fact-checked on an ongoing basis — content and coverage are subject to change.

Background: two state statutes

Documented

In 2021, two states enacted statutes restricting how major social media platforms could moderate content by their residents.

• Florida SB 7072 (enacted May 2021) prohibited covered platforms from deplatforming political candidates, applied non-discrimination requirements to journalistic enterprises, and required platforms to publish content-moderation standards and apply them consistently. NetChoice and the Computer & Communications Industry Association challenged the statute in the Northern District of Florida; the district court preliminarily enjoined most provisions; the Eleventh Circuit affirmed in substantial part on First Amendment grounds, without reaching the district court's Section 230 preemption holding.
• Texas HB 20 (enacted September 2021) prohibited social media platforms with at least 50 million active monthly users from censoring users based on viewpoint. NetChoice challenged the statute in the Western District of Texas; the district court preliminarily enjoined it; the Fifth Circuit reversed, reinstating the statute; the Fifth Circuit’s decision created a circuit split with the Eleventh Circuit.

The Supreme Court decisions (July 1, 2024)

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The Supreme Court decided both cases on the same day and in the same opinion: Moody v. NetChoice, LLC, 603 U.S. ___ (2024), decided July 1, 2024. Justice Kagan wrote for the majority, joined by five other Justices; Justices Thomas, Alito, and Gorsuch concurred in the judgment only without joining the majority opinion.

The Court’s central holding was procedural: the lower courts had not conducted adequate First Amendment analysis for a facial challenge. A facial challenge to a statute requires the challenger to show the statute is unconstitutional in all or nearly all of its applications. Both circuit courts had failed to conduct the necessary assessment of the full range of applications the statutes would cover. The Court vacated both circuit-court decisions and remanded for proper analysis.

The Court did not rule on the constitutionality of either statute. It did not rule on whether platforms’ content-curation activities are protected First Amendment speech. It did not decide whether platforms can be classified as common carriers.

What the majority said about platforms and the First Amendment

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While the Court declined to resolve the ultimate constitutional question, Justice Kagan’s majority opinion offered substantial analysis of how the First Amendment framework likely applies to platform content decisions.

The majority noted that when platforms compile and curate third-party content — the “feed” a user sees, what appears trending, what is algorithmically promoted — these editorial choices may constitute protected First Amendment activity, on an analogy to the editorial judgments of a parade organiser or a newspaper. The majority cited Hurley v. Irish-American Gay Group of Boston (1995) and Miami Herald Publishing Co. v. Tornillo (1974) as the relevant precedents.

The majority also noted that the analogy is imperfect: platforms carry enormous volumes of third-party speech, do not speak in a single editorial voice, and in some respects operate more like a shopping mall or common carrier than like a newspaper. The majority flagged — without resolving — that the First Amendment analysis might differ for different platform functions (a messaging service versus an editorial feed, for example).

The common-carrier question: explicitly deferred

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Texas HB 20 was expressly premised on the theory that dominant social media platforms are common carriers. The statute’s legislative findings characterised dominant social media platforms as functioning as common carriers of electronic communications. The Fifth Circuit majority (Judge Oldham writing) accepted this characterisation and held that common carriers have diminished First Amendment rights to refuse to carry lawful speech.

The Supreme Court majority in Moody v. NetChoice did not address whether platforms are or can be designated common carriers. Justice Thomas, concurring, had previously expressed receptivity to the common-carrier analogy. His primary statement on the issue is a 12-page concurrence in Biden v. Knight First Amendment Institute (2021), in which he argued that platforms sufficiently akin to common carriers or places of public accommodation could be regulated accordingly without triggering heightened First Amendment scrutiny. He returned to the theme in NetChoice, LLC v. Paxton, No. 21A720 (2022), in which Justice Alito authored a dissent from the Court's grant of the application, joined by Justices Thomas and Gorsuch, and again in his concurrence in Moody v. NetChoice itself. In Moody, the majority bracketed the question rather than deciding it.

What remains open after the remand

Open

Following the remand, the central unresolved questions for federal courts and for Congress include:

• Whether platform curation is protected First Amendment speech, and if so, to what degree. The Eleventh and Fifth Circuits must now conduct the full facial-challenge analysis the Supreme Court required. Their eventual holdings, and any subsequent Supreme Court review, will determine whether must-carry obligations can survive First Amendment scrutiny at all.
• Whether the common-carrier designation reduces or eliminates the First Amendment protection otherwise available to platforms. If Congress or a state legislature designates platforms as common carriers by statute, does the designation itself alter the First Amendment analysis? The Court’s precedents on this point (particularly Turner Broadcasting) provide a framework but not a definitive answer for social media.
• Whether different platform functions are subject to different First Amendment rules. The majority suggested (without deciding) that direct messaging services, marketplace listings, and editorial feeds might be treated differently. The implications for content-moderation policy and for common-carrier proposals depend on how courts resolve this question.
• Whether antitrust law provides an alternative path. If First Amendment limits bar utility-style must-carry obligations across the board, structural antitrust remedies — breaking up vertically integrated platforms — may be the only available mechanism for increasing the diversity of the infrastructure layer.