Moody v. Net Choice and Net Choice v. Paxton: The Future of Online Content Moderation

By: Matthew Vega

Edited by: Isabel Niemer and ISabel Gortner

On February 26th, the Supreme Court heard oral arguments for Moody v. Net Choice, LLC and Net Choice, LLC v. Paxton, both of which were cases involved with content moderation laws protecting conservative speech in Florida and Texas, respectively. The Supreme Court is expected to release its decisions by the summer, which will determine whether the content moderation restrictions in Florida S.B. 7072 align with the First Amendment and whether the law's requirements for individualized explanations also adhere to First Amendment principles in the case of Moody v. Net Choice.[1] The Supreme Court will also decide whether the provisions of Texas HB 20, which prohibit social media platforms from censoring users' content and impose strict disclosure requirements, violate the First Amendment in the case of Net Choice v. Paxton.[2] 

The Supreme Court did not have many cases to use as precedent for social media speech regulation, instead basing most of their arguments on cases involving other kinds of speech, such as Miami Herald v. Tornillo which held that the government cannot force newspapers to print replies from candidates they criticize, as it would infringe upon the newspaper's editorial discretion and right to control its content, giving the press the right to editorial discretion. [3] Neither of these proposed laws have been enacted yet, as the U.S. Court of Appeals for the 11th Circuit blocked Florida from enforcing most of the law and the Supreme Court barred the state from implementing its law while the case continued. 

During oral arguments, the Supreme Court justices remained skeptical of the constitutionality of the new Florida and Texas laws. In the case of Moody v. Net Choice, Henry Whitaker argued on behalf of the petitioners that “the design of the First Amendment is to prevent the suppression of speech, not to enable it.” [4] Many members of the Supreme Court rejected this framework of the issue, such as Justice Kagan who called the proposed legislation “a classic First Amendment violation.” Justice Kavanaugh even rebuked this notion by Whitaker, citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, PG&E v. Public Utilities Comm'n, and Miami Herald Publishing Company v. Tornillo  as cases that “emphasize editorial control as being fundamentally protected by the First Amendment.”[5] [6] This editorial control issue was shared by nearly every member of the Supreme Court. Even Justice Alito who appeared more inclined to uphold the laws, asked Whitaker if content moderation was anything more than “a euphemism for censorship”. Justice Alito additionally pointed out that because of the broad scope of the Florida Legislation, Internet mail services like Gmail also fall under the scope of controlled speech, asking if “Gmail [has] a First Amendment right to delete, let's say, Tucker Carlson's or Rachel Maddow's Gmail accounts if they don't agree with …  his or her viewpoints?”

At the beginning of the Net Choice, LLC v. Paxton case, Paul Clement, who argued on behalf of Net Choice in both cases that day, began his oral argument by jokingly pointing out how similar both cases were, then stating the primary difference between the two was that the Texas legislation is much more narrowly focused on social media platforms rather than websites. [7] This means that the Gmail example in the previous case would not apply. However, the Texas legislation also excludes websites based on “news, sports, and entertainment” which he called content-based discrimination which would be “facially unconstitutional.” Justice Gorsuch expressed confusion with the application of editorial control from social media platforms and why they do not consider it speech in regards to the First Amendment and not speech in regards to the Texas law. 

Though they appeared to have issues with the proposed legislation from both Florida and Texas, the Justices did appear to be in favor of some changes being made to the ability of social media platforms to restrict or promote content. Given the sweeping implications of this case on online speech, the Supreme Court is expected to deliver an incredibly narrow decision regardless of which side they rule in favor of. If the court rules in favor of Net Choice, they likely anticipate another case similar in content to be brought to them in the future. 

Notes:

1. "Moody v. NetChoice, LLC" SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander/

2. "NetChoice, LLC v. Paxton” SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander/

3. "Miami Herald Publishing Company v. Tornillo." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/475/1/.

4. "Oral Argument Transcript: Moody v. Net Choice, LLC." Supreme Court of the United States, 2023, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-277_5536.pdf.

5. "Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/515/557/.

6.  "PG&E v. Public Utilities Comm'n." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/418/241/.

7. "Oral Argument Transcript: Net Choice, LLC. v. Paxton " Supreme Court of the United States, 2023, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-555_omq2.pdf

Bibliography: 

"Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/515/557/.

"Miami Herald Publishing Company v. Tornillo." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/475/1/.

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-555_omq2.pdf

"Moody v. NetChoice, LLC" SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander/

"NetChoice, LLC v. Paxton” SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander.

"Oral Argument Transcript: Moody v. Net Choice, LLC." Supreme Court of the United States, 2023, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-277_5536.pdf.

"Oral Argument Transcript: Net Choice, LLC. v. Paxton " Supreme Court of the United States, 2023, 

"PG&E v. Public Utilities Comm'n." Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/418/241/.