## Facts

- Florida enacted S.B. 7072 (2021) and Texas enacted H.B. 20 (2021), regulating large internet platforms’ content-moderation practices and imposing user-notice and disclosure duties.
- The statutes sought to limit platforms’ ability to remove, prioritize, label, or otherwise treat user-generated content; Florida’s law was motivated in part by perceived viewpoint bias against conservatives.
- NetChoice and CCIA, trade associations whose members include major social-media platforms, brought facial First Amendment challenges to both statutes and asserted additional federal preemption theories.
- Federal district courts preliminarily enjoined substantial portions of each statute.
- The Eleventh Circuit largely affirmed the Florida injunction, viewing moderation restrictions as burdens on protected editorial discretion and finding the notice/explanation mandates likely to chill protected speech.
- The Fifth Circuit reversed the Texas injunction, reasoning that moderation is not protected speech and treating the law as permissible regulation of conduct.
- The Supreme Court consolidated the cases to resolve the conflict about how to evaluate facial First Amendment challenges to these laws.

## Issues

1. Whether platforms’ content-moderation choices involve protected expression (editorial discretion) under the First Amendment.
2. Whether Florida’s and Texas’s moderation restrictions and explanation requirements are facially unconstitutional under the First Amendment.
3. What method courts must use to decide facial First Amendment challenges to statutes regulating platform moderation and related disclosures.

## Decision

- The Supreme Court vacated both appellate judgments and remanded.
- The Court held that neither court of appeals applied the proper facial-challenge analysis because neither conducted the required application-by-application assessment across the statutes’ different provisions and covered services.
- The Court rejected the Fifth Circuit’s view that content moderation is “not speech,” explaining that many applications of these laws implicate platforms’ protected editorial discretion.
- The Court did not finally decide whether either statute is unconstitutional, directing lower courts to reassess the facial challenges under the correct framework.

## Legal Principles

- The First Amendment protects editorial discretion, including compiling, curating, ordering, labeling, and excluding third-party speech; the government generally may not compel a private speaker to carry messages it would prefer to exclude.
- A State may not interfere with private speech to advance the State’s preferred ideological balance in public debate.
- Facial First Amendment challenges require evaluating whether a substantial number of a law’s applications are unconstitutional relative to its legitimate sweep, rather than assuming a single set of facts or a single platform function.
- When statutes cover multiple platform functions and impose distinct obligations (e.g., moderation restrictions versus individualized explanations or disclosures), courts must separately assess the constitutionality of each provision across its plausible applications.
- Mandates to provide individualized explanations for moderation decisions can raise First Amendment concerns when they burden or chill protected editorial choices and may require tailored scrutiny depending on context.

## Conclusion

The Court vacated and remanded because the lower courts did not conduct the necessary application-specific facial review of Florida’s and Texas’s platform regulations; it also indicated that content moderation often reflects protected editorial discretion and cannot be treated categorically as nonexpressive conduct.


Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024)