Moody v. NetChoice, LLC
NetChoice, LLC v. Paxton
Supreme Court of the United States
Argued February 26, 2024
Full case nameAshley 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.
Docket nos.22-277
22-555
Questions presented
1. Whether the laws’ content-moderation restrictions comply with the First Amendment.
2. Whether the laws’ individualized-explanation requirements comply with the First Amendment
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Samuel Alito
Sonia Sotomayor · Elena Kagan
Neil Gorsuch · Brett Kavanaugh
Amy Coney Barrett · Ketanji Brown Jackson

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 enables interactive service providers such as social media platforms certain immunities from content posted by their users, as well as a "Good Samaritan" clause for these 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. Most of this misinformation originated from conservative parties including the far right and alt right.[3] Because of this, services like YouTube, Twitter and Facebook took action to moderate these posts from users, either by tagging them as misinformation or outright removal.[3] Some of this misinformation was put forth by Republican party members, including then-President Donald Trump, leading the Republican Party to seek legal review of Section 230 believing that this law allowed politically motivated moderation.[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 gave too much immunity to service providers and it 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 the idea of a state bill that would prevent interactive service providers from deplatforming running candidates for office, citing the removal of the Parler app from Google and Apple's app stores as an example of this issue.[8] This led to the creation of Florida State Bill (SB) 7072, which was passed by the state legislature in May 2021. The final bill would fine these providers if they banned a running candidate for more than 60 days, and instituted similar penalties on "journalistic enterprises" that operate in Florida and have with either over 100,000 monthly users or 50,000 subscribers. The bill contained 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]

NetChoice and the Computer & Communications Industry Association (CCIA) challenged the law shortly after it was passed, via a lawsuit filed against Florida Attorney General Ashley Moody. Judge Robert Hinkle of the United States District Court for the Northern District of Florida granted a preliminary injunction against the enforcement of most of SB 7072 in June 2021, stating that "Balancing the exchange of ideas among private speakers is not a legitimate governmental interest."[11] The Eleventh Circuit upheld most of the injunction in May 2022, dismissing the part of the injunction related to the theme park clause since by that point, the exemption had been removed.[12]

NetChoice v. Paxton

Main article: Texas House Bill 20

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 content based on 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 enactment of the bill, NetChoice and CCIA sued Ken Paxton, the Attorney General of Texas, in federal court to block its implementation. On December 1, 2021, the United States District Court for the Western District of Texas granted a preliminary injunction against the law's enforcement. The court ruled that the law was unconstitutional because editorial discretion, such as the moderation actions the law forbade, is protected by the First Amendment.[13] Texas appealed the district court's decision to grant an injunction, and in May of 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's stay by a 5–4 vote, allowing the injunction to take effect once more. Justices Alito, Thomas, and Gorsuch dissented, writing that H.B. 20 was "novel" and that it was not clear how the court's precedent should apply in this case and that the Supreme Court should therefore not have intervened. Justice Kagan voted to deny the stay as well, but did not write to 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 believed that a majority of the justices do not support the states' laws as they likely violated the First Amendment, and are likely to disagree with applying different standards to the largest social media businesses compared to other smaller sites that also engaged in creative expression, such as Etsy. Because of the vagueness of these laws, court observers believed that the current injunctions would be upheld by the Supreme Court and the cases sent back 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 communications based on speech, or private businesses that would not be subject to government censorship issues and are free to moderate as desired, but this also led to questions of whether email providers like Gmail could invoke such moderation.[25]

References

  1. ^ McCabe, David (25 February 2024). "What to Know About the Supreme Court Arguments on Social Media Laws". The New York Times. Retrieved 28 March 2024.
  2. ^ Grossman, Wendy M. "The Twenty-Six Words that Created the Internet, book review: The biography of a law". ZDNet. Archived from the original on January 12, 2021. Retrieved 2020-09-04.
  3. ^ a b Edelman, Gilad (December 27, 2020). "Better Than Nothing: A Look at Content Moderation in 2020". Wired. Retrieved September 29, 2023.
  4. ^ Fung, Brian (May 27, 2020). "Trump threatens to crack down on social media platforms after Twitter labels his tweets". CNN. Archived from the original on January 21, 2021. Retrieved May 28, 2020.
  5. ^ "Clarence Thomas Suggests Section 230 Immunities Applied Too Broadly to Tech Companies". news.yahoo.com. October 13, 2020. Retrieved 2022-11-11.
  6. ^ Bonifacic, Igor (2021-05-24). "Florida governor signs state's social media 'deplatforming' bill into law". Engadget. Retrieved 2024-03-28.
  7. ^ Masnick, Mike (2022-09-30). "No One Has Any Clue How Texas' Social Media Law Can Actually Work (Because It Can't Work)". Techdirt. Retrieved 2022-10-01.
  8. ^ "Gov. DeSantis proposes law that would fine Big Tech companies that 'deplatform' political candidates". WFLA. February 2, 2021. Retrieved October 2, 2023.
  9. ^ Lyons, Kim (May 1, 2021). "Florida bill would fine social media platforms for banning politicians— with exemption for Disney". The Verge. Retrieved October 2, 2023.
  10. ^ Kay, Jennifer (April 22, 2022). "DeSantis Set to Sign Bill Closing Disney Loophole in Tech Law". Bloomberg Law. Retrieved October 2, 2023.
  11. ^ Robertson, Adi (June 30, 2021). "Judge blocks Florida's social media law". The Verge. Retrieved October 2, 2023.
  12. ^ Robertson, Adi (May 23, 2022). "Florida's social media moderation ban is probably unconstitutional, says court". The Verge. Retrieved October 2, 2023.
  13. ^ a b Rubin, Aaron (December 16, 2021). "District Court Enjoins Controversial Texas House Bill 20". JD Supra.
  14. ^ Stern, Mark Joseph (May 12, 2022). "The 5th Circuit's Reinstatement of Texas' Internet Censorship Law Could Break Social Media". Slate.
  15. ^ "NetChoice, L.L.C, et al. v. Ken Paxton, Attorney General of Texas" (PDF). May 11, 2022.
  16. ^ "Emergency Application for Immediate Administrative Relief and to Vacate Stay of Preliminary Injunction Issued by the United States Court of Appeals for the Fifth Circuit" (PDF). May 13, 2022.
  17. ^ "Divided court blocks Texas from enforcing social media law". SCOTUSblog. 2022-05-31. Retrieved 2022-06-02.
  18. ^ "NETCHOICE, LLC, DBA NETCHOICE, ET AL. v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS" (PDF).
  19. ^ "NetChoice, L.L.C, et al. v. Ken Paxton, Attorney General of Texas" (PDF). September 16, 2022.
  20. ^ Kern, Rebecca. "5th Circuit upholds Texas law forbidding social media 'censorship' — again". POLITICO. Retrieved September 16, 2022.
  21. ^ Bravin, Jess (September 29, 2023). "Supreme Court Takes Case on Social-Media Content Moderation". The Wall Street Journal. News Corp. Retrieved September 29, 2023.
  22. ^ Capoot, Ashley (September 29, 2023). "Supreme Court to hear Texas and Florida social media cases over right to moderate content". CNBC. Retrieved September 29, 2023.
  23. ^ "Moody v. NetChoice, LLC". SCOTUSblog. Retrieved 2024-01-06.
  24. ^ Liptak, Adam (2024-02-26). "Supreme Court Seems Wary of State Laws Regulating Social Media Platforms". The New York Times. ISSN 0362-4331. Retrieved 2024-02-28.
  25. ^ Sherman, Mark (February 26, 2024). "Supreme Court casts doubt on GOP-led states' efforts to regulate social media platforms". Associated Press. Retrieved February 26, 2024.

External links

United States First Amendment case law
Categories