Supreme Court Decides Moody et. al., v. NetChoice, LLC, and NetChoice, LLC v. Paxton

On July 1, 2024, the U.S. Supreme Court decided Moody et. al., v. NetChoice, LLC, and NetChoice, LLC, v. Paxton, in which the Eleventh Circuit and Fifth Circuit Courts of Appeals had reached opposite decisions about a state’s ability to regulate social media platforms, holding that both Florida and Texas failed to start with the scope of activity regulated by their statutes and to weigh the constitutional and unconstitutional applications, to which a court will apply a First Amendment-specific standard of “whether ‘a substantial number of [the law’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep” — an analysis that will necessitate a broader view of First Amendment protection than the Fifth Circuit had applied.

In 2021, Florida and Texas each enacted laws that regulated social media platforms, including their ability to limit or moderate content, as well as requiring explanations (Florida) or a right of appeal (Texas). NetChoice — a trade association whose members include Facebook and YouTube — mounted facial First Amendment challenges against the two laws, and the district courts in both Florida and Texas entered preliminary injunctions. The Eleventh Circuit upheld the injunction, finding that the Florida law was not likely to survive First Amendment review. But the Fifth Circuit reversed the Texas injunction, reasoning that content moderation was not speech, and, even if it were, the statute’s individualized-explanation provisions would survive. 

The Court first addressed the need for a court to address the full scope of a law’s applications in order to apply the weighing needed to assess whether the statute is facially unconstitutional. Instead, both courts had focused on specific applications, namely “on how the laws applied to Facebook’s News Feed and YouTube’s homepage.” By failing to address “the full range of activities the laws cover, and measure the constitutional against the unconstitutional applications[,]” the Eleventh and the Fifth Circuits “treated these cases more like as-applied claims than like facial ones.” The cases were thus both remanded. The Court went on, however, to stress two points important for remand. First, the facial analysis is different for First Amendment claims than for others, because instead of applying the “no set of circumstances” general test, in the First Amendment context, a plaintiff needs to establish only that “a substantial number” of the applications are unconstitutional when compared to the statute’s legitimate sweep. In considering the regulation of the companies as moderators of content outside the realm of the First Amendment, the Fifth Circuit erred; a compiler of content is within the protections of the First Amendment.

Justice Kagan delivered the opinion of the Court in which Chief Justice Roberts and Justices Sotomayor, Kavanaugh and Barrett joined in full, and in which Justice Jackson joined in part. Justice Barrett filed a concurring opinion. Justice Jackson filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment. Justice Alito filed an opinion concurring in the judgment, in which Justices Thomas and Gorsuch joined.