Moody v. NetChoice, LLC

In 2021, Florida and Texas enacted laws designed to prevent large social media platforms from removing or demoting content based on political viewpoint. Florida's SB 7072 prohibited platforms from deplatforming political candidates and from applying inconsistent content moderation standards. Texas's HB 20 went further, prohibiting platforms from censoring users based on viewpoint at all, and declaring platforms 'common carriers' required to carry all lawful speech. Both laws were direct responses to Twitter's and Facebook's removal of former President Trump's accounts after January 6, 2021 — actions that conservatives characterized as politically biased censorship of conservative speech.

NetChoice, an industry group representing major platforms, challenged both laws as violations of the platforms' own First Amendment rights to make editorial decisions. The Eleventh Circuit struck down Florida's law; the Fifth Circuit upheld Texas's. The Supreme Court took up both cases to resolve the circuit split on one of the most contested questions in First Amendment law: whether large social media platforms are more like editors, with First Amendment rights to curate, or more like common carriers or public utilities that can be regulated to ensure open access.

Justice Kagan wrote the majority opinion, which vacated and remanded both cases rather than issuing a final ruling on constitutionality. The Court held that neither lower court had conducted an adequate facial challenge analysis — specifically, neither court had sufficiently examined the full range of the laws' applications to determine whether a substantial number of them were unconstitutional.

But the majority also provided extensive guidance on the governing First Amendment framework. Platforms' content moderation activities — choosing what to carry, how to rank it, what to recommend, and what to remove — are editorial judgments protected by the First Amendment, analogous to the editorial discretion of a newspaper. The government cannot force a platform to carry speech it would otherwise exclude without triggering serious constitutional problems under the compelled speech doctrine.

Although Moody did not definitively strike down the Florida and Texas laws, it established the constitutional framework within which platform regulation must operate and strongly signaled that sweeping must-carry mandates are likely unconstitutional. By characterizing platform curation as editorial activity protected by the First Amendment — citing Hurley v. Irish-American Gay Group and Miami Herald v. Tornillo — the Court rejected the common carrier or public utility framing that Texas had advanced.

The decision also clarified that facial challenges to content-regulation laws require courts to examine the full scope of a law's applications, not just a subset of sympathetic facts. This procedural holding may make it harder for platforms to win facial invalidation without a more complete factual record, even as the substantive framework tilts strongly in their favor.

Justices Thomas, Alito, and Gorsuch expressed varying degrees of skepticism about the majority's platform-as-editor framework, suggesting that the constitutional status of dominant platforms remains genuinely contested within the Court.

Moody is the Supreme Court's most important statement yet on the constitutional status of social media platform content moderation. On remand, and in subsequent cases, lower courts are applying Kagan's framework to determine which specific applications of the Florida and Texas laws can survive First Amendment scrutiny and which cannot. The decision did not close the platform regulation debate — it structured it.

The case also operates as a sequel to Reno v. ACLU and Packingham v. North Carolina in building the Court's internet speech jurisprudence. Where Reno held that internet speech deserves full First Amendment protection from government regulation, and Packingham recognized social media as a modern public square, Moody adds that the platforms mediating that square have their own First Amendment rights to curate and exclude.

Moody directly governs every ongoing legal challenge to platform content moderation laws at the state and federal level. States including California, New York, and others have proposed or enacted platform transparency and content moderation laws; each will be evaluated against the framework Moody established. The decision is also central to debates about AI content moderation — as platforms increasingly rely on algorithmic and AI systems to make editorial decisions, Moody's protection of editorial discretion extends to those automated processes.

The question Moody left open — whether any government mandate compelling platforms to carry or distribute speech can survive First Amendment scrutiny — will define the next decade of internet governance litigation.