Moody v. NetChoice, LLC
The Supreme Court sent back to lower courts two blockbuster cases challenging Florida and Texas laws that restrict how social-media giants like Facebook and YouTube filter and remove posts, ruling that neither appeals court had done the legal analysis required before deciding whether the laws are constitutional.
The decision is the Court's first major statement on social-media platforms' First Amendment rights, making clear that platforms do exercise protected editorial discretion when they curate their feeds — and that a state cannot override those choices simply because it dislikes the resulting mix of viewpoints.
How it got here: District courts in both states preliminarily enjoined the laws; the Eleventh Circuit upheld Florida's injunction and the Fifth Circuit reversed Texas's, creating a circuit split the Supreme Court agreed to resolve.
The Case in Depth
What happened
Florida and Texas each passed laws in 2021 restricting how large social-media companies handle user posts. Both laws prevent platforms from removing, demoting, or labeling posts based on the post's viewpoint, and both require platforms to explain individually to users when their posts are removed. NetChoice, a trade association whose members include Facebook and YouTube, argued that these restrictions violated the platforms' own First Amendment right to choose what content to display. Courts in both states blocked the laws while the litigation continued, setting off conflicting rulings in the federal appeals courts.
The question before the Court
Can Florida and Texas force large social-media companies like Facebook and YouTube to carry posts the platforms would otherwise remove or demote based on the content's viewpoint — and if so, do state laws doing exactly that violate the First Amendment?
The Court's answer
The Court did not decide whether either law violates the First Amendment. Instead, finding that both lower courts failed to perform the right analysis, it sent both cases back for further proceedings.
To challenge a law "on its face" — arguing it is unconstitutional across all or most of its applications — a party must show that the law's unconstitutional uses substantially outweigh its constitutional ones. That requires courts to first map out everything a law covers, then identify which applications cross constitutional lines, and finally weigh the two groups. Neither the Eleventh Circuit nor the Fifth Circuit did this; both focused almost entirely on Facebook's News Feed and YouTube's homepage while ignoring the laws' potential reach to direct messaging services, email filters, online marketplaces, ride-sharing apps, and other platforms. On the First Amendment principles that will govern the remand, however, the Court was clear: platforms exercise protected editorial discretion when curating their feeds, and a state cannot override that discretion simply to rebalance the marketplace of viewpoints.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Social-media companies retain their First Amendment right to make editorial choices about what content appears on their main feeds, at least for now. Florida's and Texas's laws — which would have forced platforms to carry posts they would otherwise remove based on viewpoint — remain under active legal challenge. The ruling also sets the terms for how all future state regulation of social-media content moderation will be evaluated.
What changes now
Both cases return to their respective circuits, which must now conduct the full facial-challenge analysis the Court described: surveying every platform and function each law covers, deciding which applications violate the First Amendment and which don't, and weighing the two groups against each other. The Court's guidance that content-moderation choices on main social-media feeds are protected editorial expression — and that a state cannot rebalance viewpoints on those feeds — will shape those proceedings. The ultimate constitutionality of both laws remains unresolved.
What this does not decide
The Court did not decide whether Florida's or Texas's law is ultimately constitutional. It explicitly left open how the First Amendment applies to social-media functions beyond curated main feeds — such as direct messaging, email, or ride-sharing apps — and reserved questions about whether AI-driven moderation algorithms are equally as expressive as human editorial judgment.
Concurrences and dissents
Concurrence — Justice Barrett
Justice Barrett joined the majority fully but wrote separately to flag that a facial challenge to broad social-media laws may be 'daunting, if not impossible' to win. She suggested that as-applied challenges targeting specific platform functions — like Facebook's News Feed versus its Messenger service — would be far more practical. She also noted that AI-driven and fully automated moderation algorithms raise unresolved questions about whether the connection to human expressive choice is close enough to warrant First Amendment protection.
Concurrence in part — Justice Jackson
Justice Jackson joined Parts I, II, and III-A of the majority opinion and agreed the cases must be sent back, but disagreed with the majority's decision to preview First Amendment merits for Facebook's News Feed and YouTube's homepage. In her view, courts on remand must carefully examine the specific, actual functioning of each regulated activity before deciding whether it constitutes protected expression — and faced with novel constitutional questions on undeveloped records, the Court should have decided no more than strictly necessary.
Concurrence — Justice Thomas
Justice Thomas agreed to vacate and remand but called the majority's First Amendment guidance unnecessary dicta, joining Justice Alito's opinion in full. He wrote separately to add that (1) the Zauderer disclosure framework deserves reconsideration, and (2) the common-carrier doctrine — which can require businesses to serve all comers without discrimination — should continue to guide the lower courts. Most fundamentally, he argued that facial challenges as a category are inconsistent with Article III's case-or-controversy requirement and should be abandoned.
Concurrence — Justice Alito
“The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional. Everything else in the opinion of the Court is nonbinding dicta.”Justice Alito argues the majority went far beyond what the cases required and that its First Amendment guidance carries no binding force.
Justice Alito, joined by Justices Thomas and Gorsuch, agreed only that NetChoice failed to prove facial unconstitutionality and called everything beyond that nonbinding dicta. He argued the majority made unwarranted assumptions — treating algorithmic curation by platforms handling petabytes of data daily as equivalent to the blue-pencil editing of 1970s newspaper editors — while failing to seriously engage with the States' common-carrier argument. He warned that the majority's early merits guidance risks locking in conclusions on questions that require far more factual development.
How the Court got there
The legal reasoning, step by step
- NetChoice brought facial First Amendment challenges — arguing the laws are unconstitutional across all or substantially all their applications. The governing standard requires showing that unconstitutional applications substantially outnumber constitutional ones, judged against the law's plainly legitimate sweep. This is a deliberately high bar even in free-speech cases, intended to prevent courts from prematurely wiping out laws that could constitutionally be enforced in many situations.
- Before a court can weigh constitutional against unconstitutional applications, it must determine everything the law actually covers. Both the Florida and Texas laws appear to reach far beyond Facebook's News Feed and YouTube's homepage — potentially including Gmail's spam filter, Etsy's product listings, Venmo's payment feeds, and Uber's driver ratings — each of which may present different First Amendment questions. No court had assessed those applications.
- Neither the Eleventh nor the Fifth Circuit performed this full-scope analysis. Both treated the cases essentially as narrow, targeted challenges about Facebook's News Feed, ignoring the laws' broader reach. That analytical failure is the primary reason for sending both decisions back: a court cannot conduct the required facial analysis without first knowing what the law covers.
- On the First Amendment principles that must guide the remand: when a social-media platform uses its Community Standards and algorithmic rules to remove, demote, or label posts on its main feed, it is exercising protected 'editorial discretion' — the same kind of judgment the Court has repeatedly shielded for newspapers (Miami Herald v. Tornillo), cable operators (Turner Broadcasting v. FCC), and parade organizers (Hurley v. Irish-American Gay Group). The Fifth Circuit's conclusion that content moderation is not 'speech' at all was a serious misreading of First Amendment precedent.
- Texas's asserted justification — correcting the ideological balance on the major platforms' feeds — fails even intermediate scrutiny, the less demanding of the two main First Amendment tests. Intermediate scrutiny requires a government interest 'unrelated to the suppression of free expression.' Texas's goal is entirely about changing what private speakers say; that is precisely the kind of interest the government cannot pursue. In case after case, the Court has barred states from forcing private speakers to present more of certain viewpoints to improve the speech marketplace, and the same rule applies to social-media platforms.
- The Court provides these First Amendment principles to prevent the lower courts from repeating the Fifth Circuit's errors on remand, but stops short of resolving the ultimate facial question itself — which requires the lower courts to survey all the laws' applications, determine which are constitutionally protected and which are not, weigh the two sets, and decide whether NetChoice has carried its burden.
Doctrinal impact
Cases affected by this decision
Reaffirms Miami Herald Publishing Co. v. Tornillo (418 U.S. 241)
A compiler's editorial choices about what speech to include or exclude are protected expression — reaffirmed as applying to social-media platforms.
Reaffirms Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (515 U.S. 557)
A private curator's right to exclude certain messages is protected even when it accepts most content; reaffirmed for social-media feeds.
Distinguishes Turner Broadcasting System, Inc. v. FCC (512 U.S. 622)
Turner's must-carry rules survived because the government's interest was unrelated to viewpoints; Texas's interest in rebalancing speech is not.