Supreme Court Sends Florida, Texas Social Media Cases Back To Lower Courts

WASHINGTON - In Moody v. NetChoice, LLC, Florida and Texas enacted statutes regulating large social media companies and other internet platforms to prevent censoring conservative viewpoints.

The statutes differ in the entities they cover and the activities they limit, but both restrict the platforms' ability to engage in content moderation—filtering, prioritizing, and labeling third-party messages, videos, and other content their users post. Both laws also include provisions requiring platforms to provide individualized explanations to users if their posts are removed or altered.

NetChoice LLC and the Computer & Communications Industry Association (collectively, NetChoice)—trade associations whose members include Facebook and YouTube—filed facial First Amendment challenges against both laws. District courts in both states issued preliminary injunctions.

The Eleventh Circuit upheld the injunction against Florida’s law, asserting that the state's restrictions on content moderation trigger First Amendment scrutiny under Supreme Court cases protecting "editorial discretion." The court concluded that the content moderation provisions are unlikely to survive heightened scrutiny. It also found the statute's individualized explanation requirements likely to be unduly burdensome and likely to chill platforms' protected speech.

In contrast, the Fifth Circuit reversed the preliminary injunction against Texas's law. The court opined that the platforms' content moderation activities do not constitute speech and, therefore, do not implicate the First Amendment. Even if those activities were expressive, the court believed the state could regulate them to advance its interest in protecting a diversity of ideas. The court also held that the statute's individualized explanation provisions would likely survive, finding no undue burden under existing precedents.

The U.S. Supreme Court vacated both judgments and remanded the cases, ruling that neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to the Florida and Texas laws regulating large internet platforms.