Ashley Moody, Attorney General of Florida, et al., v. NetChoice, LLC dba NetChoice, et al. NetChoice, LLC dba NetChoice, et al., v. Ken Paxton, Attorney General of Texas, et al.
1. Whether the laws’ content-moderation restrictions comply with the First Amendment. 2. Whether the laws’ individualized-explanation requirements comply with the First Amendment
Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton are pending
United States Supreme Court cases related to protected speech under the
First Amendment,
content moderation by interactive service providers on the Internet under
Section 230 of the
Communications Decency Act, and two state statutes passed in Florida and Texas that sought to limit this moderation. While originating with statutes in two different states, the Moody and Paxton cases are often discussed in tandem because the U.S. Supreme Court is likely to review them together.[1]
Background
Section 230 was passed as part of the
Communications Decency Act in 1996, which offers interactive service providers such as
social media platforms certain immunities from legal liability for content posted by their users, as well as a "Good Samaritan" clause for such providers to moderate content they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." Section 230 has been considered an essential part of the rapid rise and success of the Internet in the United States.[2]
Leading up to the
2020 United States elections, there was a rise of misinformation on these services related to topics such as claims of
election fraud and conspiracy theories related to the
COVID-19 pandemic. Much of this misinformation originated from conservative parties including the
far right and
alt right.[3] Services like
YouTube,
Twitter, and
Facebook took action to moderate such user-generated posts, either by tagging them as misinformation or removing them altogether.[3]
Some of the affected content was put forth by Republican party members, including then-President
Donald Trump, leading the Republican Party to question the efficacy of Section 230 in the belief that this law allowed politically motivated restrictions of social media content.[4] The Republicans were further emboldened when Justice
Clarence Thomas, in a dissenting opinion in the 2020 case Malwarebytes, Inc. v. Enigma Software Group USA, LLC, suggested that Section 230 gives too much immunity to service providers and that its goals should be revisited.[5]
In 2021, Florida passed State Bill 7072 and Texas passed House Bill 20. Those bills addressed the ongoing controversies over social media content moderation and instituted contradictions to the procedures required under Section 230.[6][7]
Moody v. NetChoice
In February 2021, Florida governor
Ron DeSantis proposed a state bill that would prevent interactive service providers from deplatforming candidates for running for office, citing the removal of the
Parler app from the Google and Apple app stores as an example of such restrictions.[8] This led to the introduction of Florida State Bill (SB) 7072, which was passed by the state legislature in May 2021. The final bill would fine Internet firms if they banned a political official for more than 60 days, and instituted similar penalties on "journalistic enterprises" that operate in Florida and have either 100,000+ monthly users or 50,000+ subscribers. The bill included an exemption for providers that were also part of a company that operated a theme park or entertainment complex in Florida, which was taken to be a specific carve-out for
Disney World.[9] This exemption was removed later after DeSantis objected to
The Walt Disney Company's challenge to the
Florida Parental Rights in Education Act, also known as the "Don't Say Gay" law.[10]
In September 2021, the Texas state legislature passed
Texas House Bill 20, a statute that would govern the operations, particularly with regard to
content moderation, of social media companies with more than 50 million users. Among other provisions, the law forbade platforms from "censoring" (defined as essentially any mechanism by which content is removed or hidden) user-submitted content based on its viewpoint, barred email providers from impeding the transmission of emails under most circumstances (except where the content is obscene, illegal, or contains malicious code), and required platforms to provide detailed transparency reports and information about their content moderation policies.[13]
After the bill was passed, NetChoice and CCIA sued
Ken Paxton, the Attorney General of Texas, in federal court to block its enactment. On December 1, 2021, the
United States District Court for the Western District of Texas granted a preliminary injunction against enforcement of the law. The court ruled that the law was unconstitutional because editorial discretion, including content moderation by Internet firms, is protected by the
First Amendment.[13] Texas appealed the district court's injunction, and in May 2022, a panel of the
Fifth Circuit Court of Appeals issued a one-sentence, unexplained order granting a stay of the injunction and allowing the law to take effect.[14][15]
Two days after the appeals court issued its stay, NetChoice and CCIA petitioned the Supreme Court to
vacate the stay and reinstate the district court's injunction. They argued that the Fifth Circuit's unexplained order deprived them of "careful review and a meaningful decision" and that reinstating the district court's stay would preserve the status quo while the law's constitutionality continued to be litigated.[16] On May 31, 2022, the Supreme Court vacated the Fifth Circuit decision by a 5–4 vote, allowing the injunction to take effect once more. Justices
Samuel Alito,
Clarence Thomas, and
Neil Gorsuch dissented, writing that H.B. 20 was "novel" and that it was not clear how precedent should apply, so therefore the Supreme Court should not intervene. Justice
Elena Kagan voted to deny the stay as well, but did not explain her decision.[17][18]
On September 16, 2022, a panel of the Fifth Circuit ruled that the district court erred in issuing its injunction, saying that "[the platforms'] censorship is not speech", and remanded the case to the district court for further proceedings.[19] The Fifth Circuit's ruling creates a
circuit split with the
Eleventh Circuit which, as described above, ruled differently on a district court injunction against the similar statute in Florida.[20]
Supreme Court proceedings
In September 2023, the
Supreme Court agreed to jointly hear Moody v. NetChoice and NetChoice v. Paxton on questions of whether the Florida and Texas state statutes violate the
First Amendment.[21][22] Oral arguments were heard on February 26, 2024.[23]
Observers of the Supreme Court believe that a majority of the justices will not uphold the states' laws as they likely violate the First Amendment, and are likely to disagree with applying different standards to the largest social media platforms compared to other smaller sites that allow creative expression by users, such as
Etsy. Because of the
vagueness of these laws, court observers believe that the current injunctions against their enforcement will be upheld by the Supreme Court and the cases
remanded to the lower courts for further review.[24] The Justices also questioned whether the large social media services are
common carriers who should not discriminate against speech based on the topic, or if they are private businesses that are free to moderate their platforms as desired, but this also led to questions of whether email providers like
Gmail could practice such moderation.[25]