In Moody v. Netchoice, the Court considers whether Florida S.B. 7072’s content-moderation restrictions and its individualized-explanation requirements comply with the First Amendment.
Florida enacted S.B. 7072 to combat what it perceives as bias and censorship of conservatives by large social media platforms (defined as those with at least 100 million monthly users or $100 million annual gross revenue). Trade associations NetChoice and the Computer & Communications Industry Association represent some of the social media giants, including Facebook, Twitter, and TikTok, and sued Florida officials, asserting a facial challenge and alleging that the laws violate the media companies’ right to free speech and are preempted by federal law. Applying strict scrutiny because of the viewpoint-based purpose of the legislation, the district court granted a preliminary injunction against the law. The court found that the law fails the test because it is not narrowly tailored and does not serve a legitimate state interest. Florida appealed, and the Eleventh Circuit affirmed.
At oral argument, the Justices explored to what extent the First Amendment applies here. Justice Kavanaugh noted that when the government excludes speech from the public square, it violates the First Amendment but that, typically, private enterprises are allowed to decide what to include and exclude as a matter of editorial discretion. However, Chief Justice Roberts, and a few of the other Justices, asked whether the social media platforms can be likened to a modern public square, which may require a different approach to the analysis.
Justice Gorsuch wondered why it would be appropriate to analogize social media platforms to common carriers and telegraphs such as Verizon and Fed Ex, considering they are typically considered conduits for the transfer of information versus expressive platforms. In addition to discussing whether the conduct was expressive, Justice Jackson delved into whether it is truly conduct or speech in question and why a requirement to apply consistency in moderation procedures should be deemed illegitimate. She also focused on how the Court should consider the preliminary injunction given that the trade associations brought the case as a facial challenge. On a similar note, Justice Kagan pointed out that social media companies already have rules about content.
Justice Sotomayor expressed concern that the law was overly broad considering the variety of social media platforms on the internet and presented the example of the website Etsy moderating what goods people can sell on its website. Justice Thomas echoed this concern stating that facial challenges often are not specific enough, and Justice Alito wished to see a list of platforms covered by the Florida statute. Justice Alito also wondered whether “content moderation” is merely a euphemism for censorship. The argument also covered how a ruling for social media platforms would interact with Section 230 of the Communications Decency Act, but most of the argument focused on whether private businesses should have the right to exclude users or expressive activity in the ways other companies can.
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.