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.