State Utility Designation Attempts

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.

Why states moved first

Documented

By 2020 it was clear that Congress had not reached consensus on any federal approach to platform regulation. Several states — primarily, though not exclusively, Republican-controlled legislatures responding to constituent claims that platforms systematically suppressed conservative speech — enacted or proposed statutes imposing non-discrimination obligations on dominant social media companies. The legislative theory varied: some statutes used “common carrier” language explicitly; others framed the obligations in terms of viewpoint neutrality or prohibited censorship.

Florida SB 7072 (2021)

Documented

Florida Senate Bill 7072 was signed into law by Governor DeSantis on May 24, 2021. Its principal provisions:

• Prohibited covered platforms from deplatforming political candidates running for office in Florida, including suspension of more than 14 days.
• Required platforms to publish standards for content-moderation and apply them consistently.
• Applied specific non-discrimination requirements to “journalistic enterprises” — a category defined in the statute.
• Created a private right of action and provided for attorney’s fees for prevailing plaintiffs.

The statute applied to any social media platform with annual gross revenue exceeding $100 million or at least 100 million monthly users globally. It expressly exempted platforms operated by a company that also owns and operates a theme park or entertainment complex in Florida — an exemption that excluded Disney’s connected platforms from coverage.

NetChoice and the Computer & Communications Industry Association filed suit in the Northern District of Florida. The district court granted a preliminary injunction as to most provisions. The Eleventh Circuit affirmed in substantial part, holding that the statute’s core must-carry provisions likely violated the First Amendment editorial discretion of platforms. The Supreme Court vacated and remanded in Moody v. NetChoice, 603 U.S. 707 (2024), for proper facial-challenge analysis.

Texas HB 20 (2021)

Documented

Texas House Bill 20 was signed into law by Governor Abbott on September 9, 2021. Its principal provisions:

• Prohibited covered social media platforms from “censoring a user, a user’s expression, or a user’s ability to receive the expression of another person based on the viewpoint of the user or another person.”
• Required platforms to maintain a complaint system and appeal process for content-moderation decisions.
• Required biannual transparency reports on content-moderation actions.
• Created a private right of action for users affected by viewpoint-based moderation.

The statute applied to platforms with at least 50 million active users in the United States per month. The bill’s legislative findings adopted common-carrier framing: the law characterised social media platforms as common carriers of electronic communications — among the most explicit adoptions of the common-carrier designation by a U.S. legislature to that date. (The Fifth Circuit majority opinion by Judge Oldham extensively describes the statute’s common-carrier rationale; the verbatim language of the enrolled findings is reflected in the circuit court’s characterisation.)

NetChoice challenged the statute in the Western District of Texas. The district court granted a preliminary injunction. The Fifth Circuit reversed in a fractured decision, with the majority (Judge Oldham) holding that the statute did not violate the First Amendment because dominant platforms, like common carriers, lack the editorial-discretion rights that would entitle them to refuse carriage of lawful speech. The Fifth Circuit majority’s reasoning was directly contrary to the Eleventh Circuit’s reasoning on Florida SB 7072, creating a circuit split. The Supreme Court vacated and remanded in Moody v. NetChoice, 603 U.S. 707 (2024).

Other state activity

Documented

Other states proposed similar legislation between 2021 and 2024. Most did not pass or were not signed into law. Notable examples include:

• Other state legislatures — reportedly including Michigan, Ohio, Georgia, and North Carolina — introduced social media non-censorship bills with varying definitions of covered platforms, prohibited conduct, and enforcement mechanisms. None of these bills appears to have become law as of 2024.
• Louisiana enacted the SOCIAL Act in the 2023 session (reported as SB 162, signed in June 2023, with obligations taking effect in July 2024) requiring age verification and parental consent for minors’ social media accounts — a distinct legislative strategy addressing platform duty-of-care rather than viewpoint discrimination. Federal district-court litigation followed, with reporting indicating the statute was struck down in late 2025.

California pursued a different direction. A journalism-preservation-fund bill (reported as SB 1228, vetoed in 2024) would have required large platforms to pay fees into a fund supporting news organisations; the legislative strategy was economic leverage rather than common-carrier designation. California also enacted a content-moderation transparency statute in the 2021–22 session (reported as AB 587) requiring covered platforms to publicly disclose their content-moderation policies — a transparency approach distinct from either must-carry or common-carrier designation.

The federalism problem

Contested

A threshold constitutional question about state platform legislation — separate from the First Amendment question — is whether such legislation is preempted by federal law. Candidates for preemption include:

• Section 230(e)(3) expressly preempts state laws “inconsistent with” Section 230. Platforms have argued that must-carry obligations are inconsistent with platforms’ discretion under Section 230(c)(2) to moderate content. Courts have not squarely resolved this preemption argument in the context of state common-carrier statutes.
• The Commerce Clause limits state regulation of interstate commerce. A social media platform’s operations are national in scope; state-specific viewpoint-neutrality requirements could impose conflicting obligations on a single platform serving users in 50 states.

Proponents of state legislation argue that states have traditionally regulated common carriers within their borders and that a properly drafted statute can comply with both Section 230 and the Commerce Clause. The litigation record to date has not produced a definitive resolution of these preemption questions.