On July 1, the Supreme Court issued one of its most significant decisions regarding First Amendment rights on the internet in the NetChoice cases.  At issue were a pair of facial First Amendment challenges to Texas and Florida statutes regulating content moderation on social-media platforms and other websites.  Although the Court declined to decide whether either law is facially invalid and held that the courts of appeals had not properly applied the standard for facial challenges, the Court nonetheless delivered a major victory for First Amendment interests on the internet.  In particular:

• The Court set forth “constitutional principles” that provide robust protection against laws that seek to regulate or restrict how platforms select and present third-party content online—like the Texas and Florida laws at issue in these cases.  Op. 4, 12-19. 
• The Court held that “heartland applications” of the Texas law to traditional social media platforms are “unlikely to withstand First Amendment scrutiny.”  Op. 4, 10; see also Op. 19-29.
• Even while vacating the decisions of the Fifth and Eleventh Circuits, the Court did not disturb the district court orders that continue to enjoin enforcement of the Texas and Florida laws while litigation over the laws continues.  

The decision, however, also raises many questions regarding the scope of First Amendment protections online, particularly in the context of laws that seek to regulate other major online services, such as online marketplaces, payment services, ride sharing, direct messaging, or email.  And some members of the Court also raised questions about how the First Amendment might apply differently to AI or other technology-assisted content-moderation.  These and other questions may be answered in these cases on remand—and will certainly arise in future cases.

Background

In two cases, NetChoice v. Paxton and Moody v. NetChoice, NetChoice and the Computer & Communications Industry (“NetChoice”) filed facial challenges to Texas and Florida laws restricting the ability of social-media platforms and other websites to enforce their content-moderation rules and standards.  On motions for preliminary injunctions, the district courts in each of the cases held that NetChoice was likely to succeed on the merits of its facial First Amendment challenge and enjoined the statutes’ enforcement.  The Fifth Circuit reversed, holding that the statute regulates conduct and not protected expression.  The Eleventh Circuit affirmed except with respect to certain limited disclosure requirements. 

Supreme Court Decision

The Supreme Court unanimously vacated both the Fifth and Eleventh Circuit decisions, holding that neither applied the proper standard for a facial challenge.  The majority opinion went on to outline social-media platforms’ First Amendment interests in exercising editorial discretion over the third-party content that appears on their websites, correcting the Fifth Circuit’s broad conclusion that selecting, ordering, and labeling third-party content does not implicate the First Amendment.  Justices Barrett, Jackson, Thomas, and Alito each issued separate opinions, with Justices Thomas and Alito heavily criticizing the majority opinion.  

The Majority Opinion

First, the Court held that neither the Fifth Circuit nor the Eleventh Circuit properly considered the facial nature of NetChoice’s challenges, and thus vacated the Circuit Courts’ decisions.  Op. 3.  The Court reasoned that to succeed in a facial challenge on First Amendment grounds, a plaintiff must show that a law’s unconstitutional applications are substantial compared to its constitutional ones.  Op. 4.  To do that comparison, the Court explained, first requires identifying a law’s full set of applications, and then assessing whether each of those applications is constitutional or not.  Op. 4.  The lower courts and the parties had not conducted this analysis because they had focused only on how the laws apply to paradigmatic social-media functions, like Facebook’s News Feed or YouTube’s homepage.  But, the Court reasoned, the First Amendment analysis might differ for other kinds of websites and functions—such as direct messaging, email, online marketplaces, payment services, and ridesharing applications.  

Second, the Court offered guidance on how the First Amendment applies in the internet context, in order to correct errors in the Fifth Circuit’s reasoning.  The Court explained that under cases like Miami Herald Publishing v. Tornillo, PG&E v. Public Utility Commission of California, and Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, laws affecting a party’s selection and organization of third-party content and requiring that certain third-party content be hosted violate the First Amendment if “the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt.”  Op. 14.

Applying those principles to paradigmatic social-media functions (e.g., selecting and organizing content on Facebook’s News Feed and YouTube’s homepage), the Court explained that such actions are expressive because they reflect “the platforms’ choices about the views they will, and will not, convey.”  Op. 23.  The Court analogized such editorial functions to the roles of newspaper editors and parade organizers, reasoning that in the case of paradigmatic social-medial functions, “[t]he individual messages may originate with third parties, but the larger offering is the platform’s,” reflecting the platform’s “set of beliefs about which messages are appropriate and which less so.”  Op. 24.  The Court also rejected arguments that First Amendment interests are diminished merely because social-media platforms host far more than they remove or because others are unlikely to attribute specific third-party posts to the platforms.  Op. 24-25.  

Finally, the Court held that applying Texas’s law to paradigmatic social-media functions would likely violate the First Amendment because Texas’s asserted interest in re-balancing how large social-media platforms apply their content-moderation rules is not a legitimate governmental interest.  Op. 26-27.  As the Court concluded, “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.”  Op. 27. 

Implications and Open Questions 

The NetChoice opinion will likely have a significant impact on both laws and private litigation that seeks to regulate or restrict how websites moderate content.  Though Justices Alito described much of the majority’s First Amendment analysis as non-binding dicta, lower courts are likely to follow the entire majority opinion, including those portions setting out robust First Amendment principles and applying those principles to hold that the Texas law likely violates the First Amendment as applied to paradigmatic social-media functions.  

But the Court’s decision and the separate opinions of several Justices raise a number of questions that will have to be answered on remand or in future cases: 

• Can First Amendment rights of online actors effectively be protected through facial challenges?   The majority opinion sets out a framework for facial First Amendment challenges but Justices Barrett, Thomas, and Alito each questioned whether such challenges are truly viable, both in the NetChoice cases specifically and more generally.  Justice Barrett observed that the diversity of “platforms and functions” makes a facial challenge “daunting, if not impossible.”  Barrett, J., concurring at 2.  Justices Thomas and Alito took a broader view.  Justice Alito opined that “[f]acial challenges … strain the limits of the federal courts’ constitutional authority to decide only actual ‘Cases’ and ‘Controversies’” by “grant[ing] relief with respect to unknown parties in disputes that have not yet materialized.”  Alito, J., concurring at 13.  And Justice Thomas focused his concurrence on his view that federal courts “lack authority to deem a statute ‘facially’ unconstitutional” and may “decide whether a statute is constitutional only as applied to the parties before them.”  Thomas, J., concurring at 2.
• How do First Amendment’s protections apply to online marketplaces, email, direct messaging, ride-sharing applications, and payment services?  The majority opinion expressly confines its First Amendment analysis to how the Texas law applies to paradigmatic social-media platforms (Op. 19-29), and acknowledges that the analysis might—or might not—differ for other functions and other types of websites (Op 11-12).  Disagreeing with the majority’s First Amendment analysis, Justice Alito expressed doubt that the First Amendment bars Texas and Florida from applying their laws to many of these unaddressed functions and websites.  Alito, J., concurring at 23-26.
• How might the scope of First Amendment protections change as more content-moderation decisions are made using AI or other types of algorithms?  The majority opinion draws no distinction between content moderation executed by human moderators or by automated tools but both Justices Barrett and Alito questioned whether the use of algorithms and AI would undermine First Amendment protections.  Barrett, J., concurring at 2-3; Alito, J., concurring at 27-28, 31.
• How might the First Amendment apply to content-moderation actions made based on criteria other than a website’s content standards, such as filtering or promoting content based on user engagement?   The majority expressly did not address whether “feeds whose algorithms respond solely to how users act online” would receive First Amendment protection, Op. 22 n.5, and Justice Alito expressed doubt that the First Amendment would protect content moderation based on relevance to a user query or user engagement, which he did not believe to be inherently expressive, in his view.  Alito, J., concurring at 28.