Supreme Court Continues Examination of the Intersection Between Editorializing and Censorship

In Netchoice v. Paxton, a companion case to Moody, the Supreme Court considers whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws (1) restricting select websites from engaging in editorial choices about whether and how to publish and disseminate speech or (2) burdening those editorial choices through onerous operational and disclosure requirements.

Texas enacted HB 20 to prohibit large social media platforms from censoring speech based on the viewpoint of the speaker. NetChoice and the Computer & Communications Industry Association, the same trade associations that challenged Florida’s law in Moody, sued the Attorney General of Texas, challenging two provisions of the law. The district court issued a preliminary injunction, holding that the challenged sections of the law are facially unconstitutional because social media platforms have some level of editorial discretion. The Fifth Circuit reversed, holding that the social media platforms do not have an unencumbered First Amendment right to censor speech.

At oral argument, Justice Barrett sought to clarify whether the Texas law was more narrow than the Florida law because the Texas law defined “social media platforms” to exclude websites and enterprises that primarily focus on news, sports, and entertainment. She also pushed back on the attempt to liken social media platforms to “common carriers” given that these companies have terms of use that exclude certain content, which is unlike a common carrier. Justice Sotomayor suggested that if they are, in fact, common carriers, social media platforms may not legally be allowed to use this particular business model.

Justice Gorsuch expressed doubt that the content moderation—i.e., the platforms’ expression—is viewpoint neutral, noting that it is common knowledge that the social media algorithms arrange, sort, and promote certain posts by some users and not others. While other Justices, such as Justice Alito, were curious as to how the part of the Texas law that requires an individualized explanation for moderation decisions could be considered overly burdensome for megaliths given that even the European Union imposes similar requirements. On the other hand, Justice Thomas asked why Congress hadn’t enacted legislation on the topic if the law’s requirements were so clearly within a common law tradition.

Justices Jackson and Kagan explored geofencing and whether the social media platforms could realistically withdraw from Texas because of the law’s provision related to censorship and geography. Finally, Chief Justice Roberts and Justice Gorsuch dissected how the “wild west economy” surrounding the internet and social media should inform how Texas’s law is analyzed, considering the market power those private enterprises have.

The case was argued on February 26, 2024. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s opinion.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, McKenna Crisp, Monika Harris, or Puja Valera.