Moody v. NetChoice, LLC
The Supreme Court unanimously sent back to lower courts two challenges to Florida and Texas laws restricting social media companies' content-moderation practices, ruling that neither appeals court had properly analyzed whether the laws are unconstitutional across all their many applications.
A majority of the Court also clarified that social media platforms' editorial choices about which posts to carry, remove, or label in their main feeds are protected speech under the First Amendment — and that Texas's goal of correcting perceived political bias on those platforms is not a valid reason to override those choices.
“that work must be done consistent with the First Amendment, which does not go on leave when social media are involved.”
The majority's declaration that First Amendment principles apply fully to laws regulating social media platforms.
How it got here: District courts blocked both laws; the Eleventh Circuit affirmed Florida's injunction while the Fifth Circuit reversed Texas's; the Supreme Court agreed to resolve the split.
The Case in Depth
What happened
In 2021, Florida and Texas enacted laws barring large social media platforms from removing, demoting, or labeling users' posts based on viewpoint, and requiring platforms to explain to users whenever content was removed or altered. Trade associations representing companies like Facebook and YouTube sued, arguing the laws violated the First Amendment by forcing platforms to carry content their own editorial policies would otherwise exclude.
The question before the Court
Do Florida and Texas laws preventing large social media platforms from removing or demoting users' posts based on viewpoint violate the platforms' First Amendment right to make their own editorial choices?
The Court's answer
The Court sent both cases back to the lower courts without deciding whether either law is ultimately constitutional. To win a facial challenge — an argument that a law is unconstitutional across the board — the challengers needed to show that the laws' unconstitutional uses substantially outweigh their legitimate ones. But neither appeals court performed that analysis; both focused almost entirely on how the laws would affect Facebook's News Feed and YouTube's homepage, ignoring the many other platforms and services the laws might cover.
A five-justice majority also ruled that social media platforms' decisions about which posts to allow, remove, or label in their main feeds are protected speech under the First Amendment, and that a state's goal of rebalancing political viewpoints on those platforms is not a valid reason to override those editorial choices. That guidance is meant to put the lower courts on the right legal footing on remand.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
For now, major social media platforms can continue enforcing their own content policies — removing, labeling, or demoting posts they consider harmful or false — without Florida or Texas legally compelling them to carry that content. Users and politicians who felt silenced by platform decisions will see no immediate relief. The laws' ultimate constitutionality, and exactly which platforms must follow them, remains unresolved.
What changes now
Both cases return to the Eleventh and Fifth Circuits, which must now assess the full range of services and platforms the laws cover, determine which applications violate the First Amendment and which do not, and weigh those findings against each other. The Fifth Circuit must also apply the First Amendment principles the majority laid out — including that platforms' editorial choices on their main feeds are protected — rather than its prior reasoning. Further Supreme Court review is widely expected.
What this does not decide
The Court did not decide whether either law is ultimately constitutional. It did not rule on how either law applies to any service other than the main curated feeds of large social media platforms. Whether platforms can be regulated as common carriers — which can be required to serve all customers without discrimination — is a question the Court expressly left open for remand.
Concurrences and dissents
Concurrence — Justice Barrett
Justice Barrett joined the majority in full but wrote separately to caution that facial challenges are especially unmanageable in the social media context, given the need to assess dozens of varied platforms and functions. She suggested the platforms would be better served by narrower as-applied challenges targeting specific features like their main feeds. She also raised questions for future consideration, including whether fully automated or AI-driven content-moderation decisions — where humans may have little direct control — qualify as protected editorial expression the same way a human editor's choices do.
Concurrence in part — Justice Jackson
Justice Jackson joined most of the majority but objected to the Court previewing its likely conclusion that the Texas law is unconstitutional as applied to Facebook's News Feed and YouTube's homepage. She argued that on an undeveloped record, the Court should decide only what is strictly necessary and avoid issuing what amounts to advisory guidance on questions the lower courts have not yet fully examined. On remand, she said, courts must carefully analyze exactly how each regulated activity actually functions before deciding whether it qualifies as protected expression.
Concurrence — Justice Thomas
Justice Thomas agreed to vacate and remand but objected to the majority's as-applied guidance as unnecessary. He joined Justice Alito's opinion and wrote separately to argue that facial challenges are fundamentally incompatible with Article III, which limits federal courts to resolving actual cases between the parties before them. He also called for eventually reconsidering Zauderer's compelled-disclosure framework, raised doubts about associational standing, and urged the lower courts to continue examining whether platforms qualify as common carriers subject to a general duty to serve all users.
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's opening objection to the majority's extensive guidance on the First Amendment merits.
Justice Alito agreed only that NetChoice failed to prove the laws facially unconstitutional — everything else in the majority, he said, is nonbinding. He criticized the majority's guidance on Facebook and YouTube as unnecessary and unsupported by the record, arguing the comparison between platforms that algorithmically process petabytes of data daily and a 1974 newspaper editor was far too facile. He faulted the majority for dismissing the common-carrier argument without serious engagement and stressed that questions about social media's constitutional status should be resolved carefully in a fully developed as-applied challenge.
How the Court got there
The legal reasoning, step by step
- NetChoice brought 'facial challenges' — arguments that these laws are unconstitutional in all their applications, not just in specific situations. The First Amendment lowers the usual very high bar for such challenges somewhat, but challengers must still show that the law's unconstitutional applications are substantial compared to all the things the law legitimately covers.
- Before comparing constitutional to unconstitutional applications, a court must first map out everything the laws actually reach. These laws potentially cover far more than Facebook and YouTube — including direct-messaging services, email filters, ride-sharing apps, and e-commerce review sites. Neither lower court examined that full range of coverage, which is the essential first step.
- Both courts treated the cases almost entirely as challenges to how the laws would affect Facebook's News Feed and YouTube's homepage, ignoring the many other platforms and functions covered. That shortcut disqualified their decisions; on remand each court must evaluate every covered platform and function, determine which applications violate the First Amendment and which do not, and weigh the two sets against each other.
- Under an established line of First Amendment precedents — involving newspapers, utility bill inserts, cable operators, and parade organizers — an entity that curates and combines others' speech into its own expressive product has a First Amendment right to make editorial choices about what to include or exclude. The government cannot override those choices by ordering unwanted content to be carried.
- Facebook's and YouTube's algorithms and content policies reflect genuine editorial judgments about which speech to promote, remove, or label on their main feeds, placing them in the same category as those earlier protected speakers. Texas's law directly targets those editorial choices by forbidding the platforms from removing or demoting any post based on viewpoint — including posts promoting hate speech, terrorism, or vaccine misinformation.
- Texas's stated reason for overriding those editorial choices — correcting the ideological balance on major platforms — is itself aimed at controlling the content of expression. That goal cannot survive even the most lenient form of First Amendment review. The government may not commandeer private speakers to achieve its preferred vision of a balanced speech environment.
Doctrinal impact
Cases affected by this decision
Reaffirms Miami Herald Publishing Co. v. Tornillo (418 U.S. 241)
A newspaper's editorial control over its content is protected speech; the same principle extends to social media platforms' main feeds.
Reaffirms Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (515 U.S. 557)
An entity curating others' speech into an expressive product retains the right to exclude messages it disfavors, even if it admits most.
Distinguishes Turner Broadcasting System, Inc. v. FCC (512 U.S. 622)
Turner's interest in saving local broadcasting was unrelated to suppressing speech, unlike Texas's interest in rebalancing viewpoints on platforms.