Moody v. NetChoice, LLC

Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton are pending United States Supreme Court cases related to protected speech under the First Amendment, content moderation by interactive service providers on the Internet under Section 230 of the Communications Decency Act, and two state laws passed in Florida and Texas that sought to limit this moderation. Both cases are challenges to state laws restricting content moderation on social media websites. The cases are expected to be heard during the Court's 2023–24 term.

Moody v. NetChoice, LLC NetChoice, LLC v. Paxton
Supreme Court of the United States
Full case name	Ashley Moody, Attorney General of Florida, et al., v. NetChoice, LLC dba NetChoice, et al. NetChoice, LLC dba NetChoice, et al., v. Ken Paxton, Attorney General of Texas, et al.
Docket nos.	22-277 22-555
Questions presented
1. Whether the laws’ content-moderation restrictions comply with the First Amendment. 2. Whether the laws’ individualized-explanation requirements comply with the First Amendment

Background

Section 230 was passed as part of the Communications Decency Act in 1996, which enables interactive service providers such as social media services certain immunities from content posted by users of their service, as well as a "Good Samaritan" clause for these provides to moderate content they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." Section 230 has been considered an essential part of the rapid rise and success of the Internet in the United States.^[1]

Leading up to the 2020 United States elections, there was a rise of misinformation on these services related to topics such as claims of election fraud and conspiracy theories related to the COVID-19 pandemic. Most of this misinformation originated from conversative parties including the far right and alt right. Because of this, services like YouTube, Twitter and Facebook took action to moderate these posts from users, either by tagging them as misinformation or outright removal.^[2] Some of this misinformation was put forth by Republican party members, including then-President Donald Trump, leading the Republican Party to seek legal review of Section 230 believing that this law allowed politically-motivated moderation.^[3] The Republicans were further emboldened when Justice Clarence Thomas, in a dissenting opinion Malwarebytes, Inc. v. Enigma Software Group USA, LLC, suggested that Section 230 gave too much immunity to service providers and it should be revisited.^[4] Some attempts at federal law to alter Section 230 were proposed by Congress, such as the EARN IT Act, but these failed to progress to a full vote.

Two state laws passed by Florida and Texas in 2021 created state-level challenges to Section 230.

Moody v. NetChoice

In February 2021, Florida governor Ron DeSantis proposed the idea of a state bill that would prevent interactive service providers from deplatforming running candidates for office, citing the removal of the Parler app from Google and Apple's app stores as an example of this issue.^[5] This led to the creation of Florida State Bill (SB) 7072, which was passed by the state legislature in May 2021. The final bill would fine these providers if they left a ban on a running candidate for over 60 days, and similarly application to "journalistic enterprises" that operate in Florida and have with either over 100,000 monthly users or 50,000 subscribers. The bill contained an exemption for providers which were also part of a company that operated a theme park or entertainment complex in Florida, which was taken to be a specific carve-out for Disney World.^[6] This exemption was removed later after DeSantis objected to The Walt Disney Company's challenge to the Florida Parental Rights in Education Act, also known as the "Don't Say Gay" law.^[7]

NetChoice and the Computer & Communications Industry Association (CCIA) challenged the law shortly after it was passed. Judge Robert Hinkle of the United States District Court for the Northern District of Florida granted a preliminary injunction on most of SB 7072 in June 2021, stating that "Balancing the exchange of ideas among private speakers is not a legitimate governmental interest."^[8] The Eleventh Circuit upheld most of the injunction in May 2022, dismissing the part of the injunction related to the theme park clause since by that point, the exemption had been removed.^[9]

NetChoice v. Paxton

Main article: Texas House Bill 20

In September 2021, Texas passed Texas House Bill 20, a law that would govern the behavior, particularly with regard to content moderation, of social media companies with more than 50 million users. Among other provisions, the law forbade platforms from "censoring" (defined as essentially any mechanism by which content is removed or hidden) user content based on viewpoint, barred email providers from impeding the transmission of emails under most circumstances (except where the content is obscene, illegal, or contains malicious code), and required platforms provide detailed transparency reports and information about their content moderation policies.^[10]

After the enactment of the bill, NetChoice and CCIA sued Ken Paxton, the Attorney General of Texas, in federal court to block its implementation. On December 1, 2021, the federal district court granted a preliminary injunction enjoining the law's enforcement. The court ruled that the law was unconstitutional because editorial discretion, such as the moderation actions the law forbade, is protected by the First Amendment.^[10]

Texas appealed the district court's decision to grant an injunction, and in May of 2022, a panel of the Fifth Circuit Court of Appeals issued a one-sentence, unexplained order granting a stay of the injunction and allowing the law to take effect.^[11][12]

Two days after the appeals court issued its stay, NetChoice and CCIA petitioned the Supreme Court to vacate the stay and reinstate the district court's injunction. They argued that the Fifth Circuit's unreasoned order deprived them of "careful review and a meaningful decision" and that reinstating the district court's stay would preserve the status quo while the law's constitutionality continued to be litigated.^[13] On May 31, 2022, the Supreme Court vacated the Fifth Circuit's stay by a 5–4 vote, allowing the injunction to take effect once more. Justices Alito, Thomas, and Gorsuch dissented, writing that H.B. 20 was "novel" and that it was not clear how the court's precedent should apply in this case and that the Supreme Court should therefore not have intervened. Justice Kagan voted to deny the stay as well, but did not write to explain her decision.^[14][15]

On September 16, 2022, a panel of the Fifth Circuit ruled that the district court erred in issuing its injunction, saying that "[the platforms'] censorship is not speech", and remanded the case to the district court for further proceedings.^[16] The Fifth Circuit's ruling creates a circuit split with the Eleventh Circuit which, in May of 2022, largely upheld an injunction against a similar law enacted by Florida (and challenged by NetChoice).^[17]

Supreme Court

The opposing results from the Fifth and Eleventh Circuits in relation to these laws created a circuit split.

In September 2023, the U.S. Supreme Court agreed to jointly hear Moody v. NetChoice and NetChoice v. Paxton on questions of whether the Florida and Texas state laws are in compliance with the 1st Amendment.^[18][19][20]

NetChoice

NetChoice is a lobbying group for multinational technology companies that was founded in 2001. It represents about 30 social media, search and e-commerce firms including Amazon, AOL, Google, Meta (corporate parent of Facebook, Instagram and WhatsApp), eBay, PayPal, TikTok, Etsy and Yahoo!.^[21]

References

1. Grossman, Wendy M. "The Twenty-Six Words that Created the Internet, book review: The biography of a law". ZDNet. from the original on January 12, 2021. Retrieved 2020-09-04.
2. Edelman, Gilad (December 27, 2020). "Better Than Nothing: A Look at Content Moderation in 2020". Wired. Retrieved September 29, 2023.
3. Fung, Brian (May 27, 2020). "Trump threatens to crack down on social media platforms after Twitter labels his tweets". CNN. from the original on January 21, 2021. Retrieved May 28, 2020.
4. "Clarence Thomas Suggests Section 230 Immunities Applied Too Broadly to Tech Companies". news.yahoo.com. October 13, 2020. Retrieved 2022-11-11.
5. "Gov. DeSantis proposes law that would fine Big Tech companies that 'deplatform' political candidates". WFLA. February 2, 2021. Retrieved October 2, 2023.
6. Lyons, Kim (May 1, 2021). "Florida bill would fine social media platforms for banning politicians— with exemption for Disney". The Verge. Retrieved October 2, 2023.
7. Kay, Jennifer (April 22, 2022). "DeSantis Set to Sign Bill Closing Disney Loophole in Tech Law". Bloomberg Law. Retrieved October 2, 2023.
8. Robertson, Adi (June 30, 2021). "Judge blocks Florida's social media law". The Verge. Retrieved October 2, 2023.
9. Robertson, Adi (May 23, 2022). "Florida's social media moderation ban is probably unconstitutional, says court". The Verge. Retrieved October 2, 2023.
10. Rubin, Aaron (December 16, 2021). "District Court Enjoins Controversial Texas House Bill 20". JD Supra.
11. Stern, Mark Joseph (May 12, 2022). "The 5th Circuit's Reinstatement of Texas' Internet Censorship Law Could Break Social Media". Slate.
12. "NetChoice, L.L.C, et al. v. Ken Paxton, Attorney General of Texas" (PDF). May 11, 2022.
13. "Emergency Application for Immediate Administrative Relief and to Vacate Stay of Preliminary Injunction Issued by the United States Court of Appeals for the Fifth Circuit" (PDF). May 13, 2022.
14. "Divided court blocks Texas from enforcing social media law". SCOTUSblog. 2022-05-31. Retrieved 2022-06-02.
15. "NETCHOICE, LLC, DBA NETCHOICE, ET AL. v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS" (PDF).
16. "NetChoice, L.L.C, et al. v. Ken Paxton, Attorney General of Texas" (PDF). September 16, 2022.
17. Kern, Rebecca. "5th Circuit upholds Texas law forbidding social media 'censorship' — again". POLITICO. Retrieved September 16, 2022.
18. Bravin, Jess (September 29, 2023). "Supreme Court Takes Case on Social-Media Content Moderation". The Wall Street Journal. News Corp. Retrieved September 29, 2023.
19. Capoot, Ashley (September 29, 2023). "Supreme Court to hear Texas and Florida social media cases over right to moderate content". CNBC. Retrieved September 29, 2023.
20. "Moody v. NetChoice, LLC". SCOTUSblog. Retrieved 2023-10-25.
21. A 501tax-exempt; NW, charitable organization 1300 L. St; Washington, Suite 200; Dc 20005857-0044. "NetChoice Lobbyists". OpenSecrets. Retrieved 2022-09-30.{{cite web}}: CS1 maint: numeric names: authors list (link)

External links

• NetChoice's website