FREE SPEECH

Consistent with the First Amendment, Can a State Restrict How  Social-Media Platforms Moderate Content and Require Them to  Provide Notice and an Explanation to Users When They Do?

 CASE AT A GLANCE

In 2021, Florida and Texas both enacted laws that restricted how social-media platforms could moderate content provided by users of the platforms. Moreover, both states’ laws required platforms to notify a user when they modified that user’s content and explain why they modified the content.

Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton
Docket Nos.  22-277 and 22-555

Argument Date: February 26, 2024 
From: The Eleventh Circuit and the Fifth Circuit

by Steven D. Schwinn
University of Illinois Chicago School of Law, Chicago, IL

Introduction
 

NetChoice sued separately to halt Florida’s and Texas’s laws, arguing that they violated the First Amendment. The Eleventh Circuit ruled for NetChoice, but the Fifth Circuit ruled for Texas.

Issue
 

1. Does the First Amendment allow a state to restrict how a social-media platform moderates users’ content on the platform?
2. Can a state require a social-media platform to notify a user when the platform moderates that user’s content?

Facts
 

In May 2021, Florida enacted S.B. 7072, which restricts social-media platforms from moderating content by censoring, shadow banning, deplatforming, and prioritizing the posts or content of certain users and on certain topics. S.B. 7072 prohibits a social-media platform from engaging in those activities “based on the content.” In addition, the law prohibits a platform from “willfully deplatform[ing] a candidate” for public office or from using “postprioritization or shadow banning algorithms for content and material posted by or about” a candidate. S.B. 7072 also requires platforms to “apply censorship, deplatforming, and shadow banning standards in a consistent manner” and prohibits them from changing their terms of service more than “once every 30 days.” S.B. 7072 requires platforms to allow users to “opt out” of postprioritization algorithms and instead elect to view posts in “sequential or chronological” order.

In addition to these content-moderation restrictions, S.B. 7072 also requires a platform to provide an individualized explanation to a user if it removes or alters that user’s posts. The platform must deliver the notice within seven days, and it must contain both “a thorough rationale” for the action and an explanation of how the platform “became aware” of the post. S.B. 7072 applies only to very large platforms—those with at least 100 million monthly users or $100 million in gross annual revenue. It thus covers platforms such as Facebook, Instagram, and YouTube, but not Rumble, Gab, and Truth Social.

S.B. 7072 contains harsh penalties. For violations related to political candidates, the Florida Elections Commission can impose fines up to $250,000 a day. For other violations, private parties can sue for up to $100,000 per violation.

Just a few months after Florida enacted S.B. 7072, on September 9, 2021, Texas enacted, H.B. 20, its own version of restrictions on content moderation by social-media platforms. H.B. 20 (Section 7) prohibits “block[ing], ban[ning], remo[ving], deplatform[ing], demonetize[ing], deboost[ing], restrict[ing], deny[ing] equal access or visibility to, or otherwise discriminat[ing] against” “a user, a user’s expression, or a user’s ability to receive the expression of another person” based on “(1) the viewpoint of the user or another person; (2) the viewpoint represented in the user’s expression or another person’s expression; or (3) a user’s geographic location in [Texas].” Like Florida’s S.B. 7072, H.B. 20 (Section 2) also requires a platform to notify a user when it removes that user’s content and to “explain the reason the content was removed.” H.B. 20 requires a platform to “allow the user to appeal the decision to remove the content….”

The Texas attorney general or users themselves can sue to enforce these provisions. H.B. 20 authorizes “daily penalties sufficient to secure immediate compliance” “[i]f a social media platform fails to promptly comply with a court order.”

NetChoice, an internet trade association that counts social-media platforms among its members, sued separately to halt Florida’s S.B. 7072 and Texas’s H.B. 20. The district courts in both cases ruled for NetChoice. The Eleventh Circuit affirmed (in the Florida case), but the Fifth Circuit reversed (in the Texas case). These appeals followed.

Case Analysis
 

As a general matter, government restrictions on speech that are based on the content or viewpoint of the speech must satisfy the highest level of judicial scrutiny, strict scrutiny, under the First Amendment. Moreover, the government cannot compel a person or organization to speak. But at the same time, the government has more leeway in regulating speech in a content-neutral way. Moreover, government can require “common carriers”—those businesses that hold themselves open to all comers—to in fact accept all comers. Finally, the Court applies a lower-level test to government-compelled commercial disclosures.

These cases test how these principles apply to Florida’s and Texas’s content-moderation restrictions and notice-andexplanation requirements.

These cases raise two distinct issues; we’ll take them one at a time. Moreover, the issues and arguments in the two different cases are largely the same, so we’ll summarize the arguments of Florida and Texas together (as the states’ arguments). The federal government weighs in as amicus in both cases and on both issues in support of NetChoice; it proffers arguments that are substantially similar to NetChoice’s arguments.

Restrictions on Content Moderation

NetChoice argues first that social-media platforms engage in speech when they make content-moderation decisions as part of disseminating users’ speech. As a result, it says, the government cannot “control…what speech they choose to disseminate” any more than the government could tell a newspaper what editorials it can publish. Moreover, NetChoice argues that the laws contain many content and viewpoint-based restrictions on speech, including content-and speaker-based coverage and exclusions. NetChoice contends that the laws therefore must satisfy strict scrutiny.

But NetChoice argues that the laws cannot survive any level of scrutiny, let alone strict scrutiny. It contends that “governments cannot compel private actors to disseminate speech in hopes of achieving balance in—or maximizing— speech.” Moreover, it says that the states’ interests in “ensuring [that] a wide variety of views reach the public… cannot justify compelling private parties to disseminate content with which they disagree.” In any event, NetChoice says that the laws aren’t sufficiently tailored with regard to the platforms that they cover. (It asserts that S.B. 7072 equally covers large social-media platforms and “narrowly focused e-commerce websites like Etsy,” yet at the same time “conveniently excludes many websites that differ in their perceived ideological bent.” And it contends that H.B. 20 “covers only a few State-disfavored websites.”) NetChoice claims that the Fifth Circuit wrongly invoked Court precedent that applied to a different medium (government-franchised cable television) and is easily distinguishable.

NetChoice argues next that the states are wrong to say that social-media platforms engage in conduct, not speech, when they moderate content. It also argues that they are wrong to say that their laws amount to permissible regulations of common carriers. NetChoice says that the laws don’t look anything like historical common-carrier regulations. “In short, the law seeks to commandeer editorial discretion subjecting sensitive decisions about which speech to disseminate and how to do so to the oversight of the state. That is not a common-carrier regulation. It is a forbidden abridgement of core First Amendment rights.”

The states counter that the First Amendment doesn’t protect the platforms. They say that the First Amendment provides no protection for entities, such as shopping malls, law schools, and (they claim) social-media platforms, “to selectively silence the speech of those they may host.” They contend that their content-moderation restrictions are akin to permissible government regulation of common carriers, “which has long required a company that holds itself generally open to all comers to refrain from arbitrarily discriminating against its customers’ speech.” (The states assert that social-media platforms are unlike certain other entities fully protected by the First Amendment, such as newspapers and bookstores. According to the states, that’s because the platforms allow virtually anyone to post nearly any content; they simply host that content.) The states argue that their contentmoderation restrictions apply to platforms the same way that permissible common-carrier regulations apply to common carriers: they require the entities to take and accept all comers. And the states contend that the platforms have no message of their own, and therefore no protected interest in free speech.

The states argue that even if their content-moderation restrictions regulate speech, they do so in a contentneutral way. They contend that their restrictions easily meet the lower-level test (intermediate scrutiny) for content-neutral regulations, because they serve the “important government interests in ensuring that internet platforms apply their rules as stated and in limiting them from denying speakers access to the modern public square.”

Notice and Explanation Requirements

NetChoice argues that the notice and explanation requirements, just like the content-moderation restrictions, are subject to strict scrutiny. It says that the notice and explanation requirements suffer from some of the same flaws as the content-moderation restrictions, including “the same flawed content- and speaker-based coverage….” Moreover, it claims that the notice and explanation requirements “compel[] covered websites to create speech in their own name and impose onerous requirements whenever they exercise editorial control over their websites.” NetChoice claims that the Fifth Circuit erred in treating these requirements as permissible commercial-disclosure requirements; to the contrary, NetChoice asserts that “[t]hey are instead akin to requiring a newspaper to explain every decision not to publish any one of a million letters to the editor.”

NetChoice argues next that the explanation requirements fail any level of First Amendment scrutiny. It says that the states have articulated and support a sufficient interest to “subject[] the editorial process to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest.” As a result, NetChoice contends that the explanation requirements cannot satisfy even the lower-level “unduly burdensome” test for government-compelled commercial disclosures, much less strict scrutiny.

The states counter that their notice and explanation requirements amount to permissible government commercial-disclosure requirements under Court precedent. They say that the platforms have no First Amendment interest in hiding how and why they moderate content. And they contend that their requirements are only minimally burdensome on the platforms.

Significance
 

Florida and Texas enacted their content-moderation restrictions out of a perception that the covered socialmedia platforms discriminated against politically conservative speech. The states tailored their laws accordingly. (NetChoice puts all this on full display in its Statements in its briefs in the two cases.) As a result, it’s hard for the states to defend their laws as neutral with regard to content and viewpoint. And it’s even harder for them to justify their laws under strict scrutiny. As a result, the states pivot to principles covering government regulation of common carriers. In order to prevail under these principles, the states must first characterize social-media platforms as mere hosts for speech, and not speakers themselves. Putting all this together, look for the Court to focus on two points with regard to the content-moderation restrictions. First, look for the Court to examine whether the states’ content-moderation restrictions are content- and viewpoint-neutral. Next, look for the Court to probe the nature of social-media platforms to determine whether they merely host speech, or whether they speak themselves for First Amendment purposes.

As to the states’ notice and explanation requirements, look for the Court to examine whether these are similar to more conventional commercial-disclosure requirements, triggering a lower level of review, or to a form of government regulation of behavior, not speech. Look, too, for the Court to examine the hardships that these requirements created for the platforms.

NetChoice had something to say about this in the Texas case:

HB20 imposes enormously burdensome requirements designed to prevent websites from moderating content. The record demonstrates covered websites would need to radically expand their notice-and-appeals process, divert editorial resources, and disclose countless editorial decisions to comply. For example, YouTube would need to “expand” its current appeal “systems’ capacity by over 100X—from a volume handling millions of removals to that of over a billion removals.” That is the very definition of an undue burden on disseminating speech.

Florida shot back:

If, as [the platforms] emphasize, they have the technological capacity to moderate billions of posts every day, there is no apparent reason they could not also disclose to their users why they are doing so. [The platforms] already seemingly do so under European Union law, which similarly requires them to explain their individual content-moderation decisions.

A final point. We obviously can’t consider these cases without considering the politics behind them. But it’s a mistake to think that the justices will line up based on their typical political alignments. Most or all of the justices will probably consider how these cases would play if the states targeted the platforms for allegedly suppressing progressive speech. The Court’s approach to these laws has to work both ways.

ATTORNEYS FOR THE PARTIES

• For Petitioners (in 22-555) and Respondents (22-277) NetChoice, LLC, dba NetChoice, et al. (Scott A. Keller, 512.693.8350) 
• For Petitioner (in 22-277) Ashley Moody, Attorney General of Florida, et al. (Henry Charles Whitaker, 850.414.3688) 
• For Respondent (in 22-555) Ken Paxton, Attorney General of Texas (Aaron Lloyd Nielson, 512.936.1700)

AMICUS BRIEFS

In Support of Petitioners (22-555) and Respondents (22-277) NetChoice, LLC, dba NetChoice, et al.

• American Jewish Committee (Aaron Edgar Nathan, 202.303.1172)
• Americans for Prosperity Foundation (Cynthia Fleming Crawford, 571.329.2227)
• Article 19: Global Campaign for Free Expression
• (Megan Marie Coker, 214.382.3041)
• Bluesky, a Public Benefit Corporation; M. Chris Riley, an Individual; and Floor64, Inc., dba the Copia Institute (Catherine Rachel Gellis, 202.642.2849)
• Cato Institute (Thomas Arthur Berry, 202.789.5202)
• Center for Democracy & Technology (Andrew John Pincus, 202.263.3000)
• Center for Growth and Opportunity, et al. (Andrew C. Nichols, 571.549.2645)
• Chamber of Progress, et al. (Mark William Brennan, 202.637.6409)
• Developers Alliance and Software & Information Industry Association (Ari Benjamin Asher Holtzblatt,202.663.6964)
• Discord, Inc. (Rebecca Leah Tushnet, 646.898.2055)
• Electronic Frontier Foundation, et al. (David Allen Greene, 415.436.9333)
• Engine Advocacy (Benjamin William Berkowitz, 415.391.5400) 
• First Amendment and Internet Law Scholars (Gautam Singh Hans, 607.254.5994) 
• Former Representative Christopher Cox and Senator Ron Wyden (David Morris Gossett, 202.973.4200) 
• Foundation for Individual Rights and Expression (Robert Lawrence Corn-Revere, 215.717.3473) 
• Francis Fukuyama (Seth D. Greenstein, 202.204.3514) 
• Goldwater Institute (Timothy Mason Sandefur, 602.462.5000) 
• International Center for Law & Economics (Constance Lynn Pfeiffer, 713.632.8065) 
• Internet Society (Raechel Keay Kummer, 202.739.3000) 
• Internet Works, Glassdoor, LLC, Indeed, Inc., Nextdoor, Inc., Mozilla Corporation, Pinterest, Inc., Tripadvisor, LLC, Tumblr, Inc., Vimeo, Inc. (Jean-Paul Jassy, 310.870.7048) 
• Knight First Amendment Institute at Columbia University (Scott Block Wilkens, 646.745.8500) 
• Liberty Justice Center (Jacob H. Huebert, 602.462.5000) 
• Marketplace Industry Association, Etsy, Inc., OfferUp, Inc., and eBay, Inc. (Eric B. Wolff, 206.359.3779) 
• Media Law Resource Center, Inc. (George Freeman, 212.337.0200) 
• Moderators of R/Law and R/Scotus (Gabriel Akiva Zabow Latner, 647.745.4090) 
• National Taxpayers Union Foundation (Tyler Leandro Martinez, 703.683.5700) 
• Professor Christopher S. Yoo (Christopher Seung-gil Yoo, 215.746.8772) 
• Professor Eric Goldman (Michael Soonuk Kwun, 415.630.2350) Professors of History (Theodore J. Boutrous Jr., 213.229.7804) 
• Professors Richard L. Hasen, Brendan Nyhan, and Amy Wilentz (Richard Hasen, 310.206.3103) 
• Protect the First Foundation (Gene Clayton Schaerr, 202.787.1060) 
• Public Knowledge (John David Bergmayer, 202.861.0020) 
• Reason Foundation, Committee for Justice, Competitive Enterprise Institute, Taxpayers Protection Alliance (Erik S. Jaffe, 202.787.1060) 
• Reddit, Inc. (Michael Robert Huston, 202.434.1630) 
• Reporters Committee for Freedom of the Press, et al. (Bruce David Brown, 202.795.9300) 
• TechFreedom (Corbin Knight Barthold, 771.200.4997) 
• Trust & Safety Foundation (Ian C. Ballon, 310.586.7700) 
• U.S. Senator Ben Ray Luján (James Michael Showalter, 312.258.5561) 
• United States (Elizabeth B. Prelogar, Solicitor General, 202.514.2217) 
• United States Chamber of Commerce (Jonathan Podolsky Schneller, 213.430.8115) 
• Washington Legal Foundation (John Mercer Masslon II, 202.588.0302) 
• Wikimedia Foundation (Kathleen Roberta Hartnett, 415.493.2071) 
• Yelp, Inc. (Anna-Rose Mathieson, 415.649.6700)

In Support of Petitioner (22-555) NetChoice, LLC, dba NetChoice, et al.

• Phoenix Center for Advanced Legal & Economic Public Policy Studies (Lawrence Jay Spiwak, 202.274.0235)

In Support of Respondents (22-277) NetChoice, LLC, dba NetChoice, et al.

• PEN American Center and Library Futures (Lynn B. Oberlander, 212.223.0200)

In Support of Respondent (22-555) Ken Paxton, Attorney General of Texas, and Petitioner (22-227) Ashely Moody, Attorney General of Florida

• American Principles Project (Theodore Mark Cooperstein, 601.397.2471) 
• Amicus Populi (Mitchell Keiter, 310.553.8533) 
• Babylon Bee and Not the Bee (Patrick Strawbridge, 703.243.9423) 
• Center for American Liberty (Randall Wilson Miller, 214.855.7500) 
• Center for Constitutional Jurisprudence (Anthony Thomas Caso, 916.601.1916) 
• Center for Renewing America (Richard A. Epstein, 773.450.4476) 
• Children’s Health Defense (Mary Holland, 202.854.1310)
• Digital Progress Institute (Joel L Thayer, 760.668.0934) 
• Donald W. Landry (Joel Bernard Ard, 206.701.9243) 
• Dr. Christos A. Makridis (Jonathan Shae Goldstein, 610.949.0444) 
• Eric Rasmusen (James Bopp Jr., 812.232.2434) 
• iTexasPolitics, LLC dba The Texan and PowerHouse Management, Inc. (Evan Miles Goldberg, 212.888.6497) 
• Heartland Institute (James Ruffin Lawrence III, 919.755.1317) Keep the Republic (Eric Alan Hudson, 512.294.9891) 
• Legal Scholars Adam Candeub and Adam MacLeod (Kenneth James Weatherwax, 310.307.4500) 
• Missouri, Ohio, Alaska, Alabama, Arkansas, Iowa, Kentucky, Louisiana, Mississippi, Montana, Nebraska, New Hampshire, N. Dakota, Oklahoma, S. Carolina, S. Dakota, Tennessee, Utah, Virginia, AZ Legislature (Joshua Michael Divine, 573.751.8870) 
• Moms for Liberty and Institute for Free Speech (Alan Gura, 202.301.3300) 
• Open Markets Institute (Jay L. Himes, 646.808.6135) 
• Rutherford Institute (John W. Whitehead, 434.978.3888) 
• World Faith Foundation (James L. Hirsen, 714.283.8880)

In Support of Petitioner (22-227) Ashely Moody, Attorney General of Florida

• Donald J. Trump (John P. Coale, 202.255.2096)

In Support of Respondent (22-555) Ken Paxton, Attorney General of Texas

• David Mamet (Marc Arthur Greendorfer, 925.328.0128) 
• Law and History Scholars (Glenn Edward Chappell, 202.973.0900) 
• Life Legal Defense Foundation (Catherine Wynne Short, 707.224.6675) 
• Professor Philip Hamburger (Jonathan F. Mitchell, 512.686.3940) 
• Senator Josh Hawley (Joshua David Hawley, 202.224.6154) 
• Students at Columbia Against Censorship (Marc Arthur Greendorfer, 925.328.0128)
  

In Support of No Parties

• American Center for Law and Justice (Jay Alan Sekulow, 202.546.8890) 
• Anti-Defamation League (Steven M. Freeman, 212.885.7700) 
• Becket Fund for Religious Liberty in Support of Neither Party (Eric Christopher Rassbach, 202.955.0095) 
• Center for Business and Human Rights of the Leonard N. Stern School of Business at New York University (Timothy Kelso Gilman, 212.756.2000) 
• Center for Social Media and Politics at New York University, et al. (Jacob Mandell Karr, 212.998.6042) 
• Economists of Technology Policy Institute (Jennifer Beth Tatel, 202.383.3344) 
• Electronic Privacy Information Center (Alan Jay Butler, 202.483.1140) 
• Giffords Law Center to Prevent Gun Violence (Kelly Marita Percival, 415.433.2062) 
• Lawyers’ Committee for Civil Rights Under Law (David Ryan Brody, 202.662.8320) 
• National Security Experts (Mary B. McCord, 202.661.6607) 
• New York, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, North Carolina, Oregon, Rhode Island, Vermont, Washington, and Wisconsin, and the District of Columbia (Barbara Dale Underwood, 212.416.8016)