The U.S. Supreme Court is expected to issue opinions in the coming months in two highly-anticipated cases — Moody v. NetChoice, L.L.C. (11th Cir.) and NetChoice, L.L.C. v. Paxton (5th Cir.) — that could potentially have significant implications for how companies moderate content on their platforms.

The cases concern two state laws in Florida and Texas, respectively, that limit the ability of large social media companies to moderate content, and impose related disclosure requirements.  Specifically, Florida SB-7072 prohibits social media companies from “deplatform[ing]” (which the law defines as banning a user or deleting her posts for more than 14 days) candidates for political office, and from censoring, deplatforming, or shadow banning “journalistic enterprises.”  Texas HB-20 similarly prohibits large social media platforms from moderating content based on “viewpoint,” and imposes additional operational and disclosure requirements. 

Shortly after SB-7072 and HB-20 were enacted, NetChoice, L.L.C. and the Computer and Communications Industry Association challenged the laws.  Among other grounds, the plaintiffs argued that the laws were invalid because they violated the First Amendment by restricting social media companies from exercising their editorial discretion with respect to third-party content on their services.  The plaintiffs also challenged the “individualized explanation” provisions of the laws that require platforms to explain particular content moderation decisions.  The Eleventh Circuit agreed with the plaintiffs, upholding an injunction blocking enforcement of much of SB-7072 on First Amendment grounds.  As described in our previous post, the Fifth Circuit concluded that HB-20 does not violate the First Amendment, creating a circuit split.

On appeal, the Supreme Court granted certiorari to consider two questions:  (1) whether the laws’ content-moderation restrictions comply with the First Amendment; and (2) whether the laws’ individualized-explanation requirements comply with the First Amendment.  Though the parties argued both questions in their briefing, the oral arguments (which took place in February of this year) focused predominantly on the first question.  In particular:

  • Several of the Justices asked the parties to explain the potential implications of the Court’s ruling should it decide to invalidate the laws on a facial (as opposed to an as-applied) challenge.  In order to succeed on a facial challenge, a plaintiff must demonstrate that the challenged law has no “plainly legitimate sweep” under the Constitution.  Some of the Justices suggested that the Florida and Texas laws may violate the First Amendment when applied to certain functionalities such as news feeds.  They appeared to express uncertainty, however, as to whether the laws had any legitimate applications under the facial review standard that should be further considered by the courts below.
  • Consistent with their briefing to the Court, the parties sought to draw competing analogies in support of their First Amendment claims.  The States, for example, argued that the challenged Florida and Texas laws merely seek to regulate social media companies in their capacity as common carriers analogous to telegraph or utility companies, and which generally are subject to greater government regulation.  The plaintiffs disputed this characterization, contending that social media companies arrange and compile expressive speech in a manner more analogous to a newspaper than a common carrier.  
  • Although not the focus of the First Amendment questions presented to the Court, the parties several times addressed the interplay between the First Amendment and Section 230 of the Communications Act.  Section 230 provides immunity to providers of an “interactive computer service” from civil liability for third-party content posted on their sites.  Among other issues, the parties disputed whether social media companies could simultaneously seek First Amendment protection for the moderation of third-party content on their platforms, and obtain immunity from liability for such content under Section 230.  The States argued that social media companies could not maintain both positions.  The plaintiffs disagreed, arguing, in part, that Congress enacted Section 230 precisely in order to enable providers to exercise the type of editorial discretion in which social media companies engage.

It remains to be seen how, if at all, the Supreme Court will address Section 230 in ruling on the NetChoice cases.  Regardless of how the Court decides this particular issue, however, its decision could have significant implications for First Amendment jurisprudence as it relates to online providers’ ability to moderate third-party content on their sites.  The Court is expected to issue its ruling in NetChoice in the current term, which ends in June.

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Photo of Yaron Dori Yaron Dori

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the…

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the firm’s eight-person Management Committee.

Yaron’s practice advises clients on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

Early in his career, Yaron advised telecommunications companies and investors on regulatory policy and frameworks that led to the development of broadband networks. When those networks became bidirectional and enabled companies to collect consumer data, he advised those companies on their data privacy and consumer protection obligations. Today, as new technologies such as Artificial Intelligence (AI) are being used to enhance the applications and services offered by such companies, he advises them on associated legal and regulatory obligations and risks. It is this varied background – which tracks the evolution of the technology industry – that enables Yaron to provide clients with a holistic, 360-degree view of technology policy, regulation, compliance, and enforcement.

Yaron represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the Department of Commerce (DOC)—and the U.S. Congress in connection with a range of issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications, data privacy, and consumer protection regulation. His deep experience in each of these areas enables him to advise clients on a wide range of technology regulations and key business issues in which these areas intersect.

With respect to technology and telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

  • Artificial Intelligence and the Internet of Things;
  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • Section 230 and digital safety considerations;
  • Equipment and device authorization procedures;
  • The Communications Assistance for Law Enforcement Act (CALEA);
  • Customer Proprietary Network Information (CPNI) requirements;
  • The Cable Privacy Act
  • Net Neutrality; and
  • Local competition, universal service, and intercarrier compensation.

Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state communication licensees.

With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

  • The FTC Act and related agency guidance and regulations;
  • State privacy laws, such as the California Consumer Privacy Act (CCPA) and California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, and the Utah Consumer Privacy Act;
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Digital advertising practices, including native advertising and endorsements and testimonials; and
  • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

Yaron also has experience advising companies on congressional, FCC, FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.

Photo of Megan Crowley Megan Crowley

Megan Crowley is a litigator who represents clients in high-stakes matters, from case inception through trial and appeal. Her practice focuses on complex commercial disputes and litigation under the Administrative Procedure Act. Megan currently represents several leading technology companies in cutting-edge litigation relating…

Megan Crowley is a litigator who represents clients in high-stakes matters, from case inception through trial and appeal. Her practice focuses on complex commercial disputes and litigation under the Administrative Procedure Act. Megan currently represents several leading technology companies in cutting-edge litigation relating to cybersecurity and data privacy.

Megan rejoined Covington from the U.S. Department of Justice, where she defended executive branch agencies in some of their most high-profile cases. Drawing upon this experience, she has secured a number of landmark victories against the federal government in recent years. Megan was a key member of the Covington team that represented TikTok in its successful challenge to the Trump Administration’s efforts to ban the app, and its defense of the district court’s injunction on appeal. She also represented Xiaomi Corporation in its successful challenge to the Department of Defense designation that would have banned the company from U.S. financial markets, securing a preliminary injunction and, ultimately, a rescission of the ban.

Photo of Diana Lee Diana Lee

Diana Lee is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity Practice Group. Diana’s practice focuses on regulatory and enforcement matters relating to electronic surveillance, law enforcement access to digital evidence, and data privacy…

Diana Lee is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity Practice Group. Diana’s practice focuses on regulatory and enforcement matters relating to electronic surveillance, law enforcement access to digital evidence, and data privacy and cybersecurity. She also routinely advises clients on content moderation and consumer protection issues. Before rejoining the firm, she clerked for Judge Victor A. Bolden, United States District Judge for the District of Connecticut.

Diana is a member of the Bars of New York and the District of Columbia.