By: Dalia Wrocherinsky

On September 29th, 2023, the Supreme Court granted certiorari to NetChoice v. Attorney General[1] and NetChoice v. Paxton[2], cases from Florida and Texas in which the trade associations Net Choice and the Computer and Communications Industry Association challenged the states’ new content moderation laws. In 2021, Florida[3] and Texas[4] passed laws restricting social media companies’ ability to moderate content. Both statutes dictate that, among other things, social media companies cannot remove content based on users’ viewpoints, nor can they ban politicians from their platforms.[5] The Eleventh Circuit interpreted content moderation to be a form of speech protected by the First Amendment and struck down most of Florida’s law finding it was substantially likely to violate a company’s right to free speech.[6]  The Fifth Circuit upheld Texas’ law stating that content moderation is not protected by the First Amendment but rather is “censorship” that states may regulate.[7] This blog will explore how these cases intersect with legislation like Section 230, how they fit within the conservative judicial activist landscape, and their effects on companies beyond the traditional social media companies.

Forcing social media companies to host content which violates their community guidelines and policies clashes with the core principles of Section 230 of the Communications Decency Act, which recognizes that social media companies have full editorial control over the content on their platforms.[8] Section 230 ensures that websites cannot be held liable for the views espoused on their platforms by third parties.[9] Before Section 230, websites either severely limited conversation to uncontroversial topics or were completely unmoderated spaces, “tolerating pornographic, abusive or other unwanted content to avoid any legal responsibility.”[10] Section 230 allows websites to determine the type of communities they want to host through the editorial control they exercise, and the Florida and Texas laws effectively take away the ability for these platforms to do just that. [11]

Republican legislatures put forward these two content moderation laws to address perceived unfairness in how conservative viewpoints are being moderated[12], however, the laws actually conflict with the First Amendment litigation spearheaded by conservative judicial activists.[13] Conservative Supreme Court Justices “have been all about the right to expand First Amendment rights inside organizations, especially the right to exclude.”[14] Endorsing the Fifth Circuit’s interpretation of the First Amendment would require many of the Justices to contradict their previous opinions, especially Justice Kavanaugh who specifically argued that “private forums have First Amendment rights to editorial discretion.”[15]

Finally, the definition of “social media platform”[16] in the Texas bill is vague.[17] While Texas, in its filings, claimed that the only companies covered by the law were Facebook, Twitter, and YouTube, the plain language implicates any platform with more than 50 million users, which would also include companies like Wikipedia, Pinterest, Etsy, Yelp, and Indeed.[18] In practice, under Texas’ law, Wikipedia’s removal of spam or vandal edits is likely illegal if the user claims the edits are based on their viewpoint, even if the edits include false information. This law seems to allow “the government [to] decide how you deal with content…how you decide what community you want to build or who gets to be a part of that community and how you deal with your bad actors.”[19]

If upheld, the Texas law would have serious economic consequences on any company covered by the law. In attempting to accommodate the law, companies could simply shut down service in Texas, which would be incredibly costly because Texas is the second most populous state, and Florida is the third.[20] If they chose to remain in the state but stop all moderation, there is evidence that this would be very costly as well. Hate speech and blatant misinformation on social media sites have been shown to result in a decrease in consumer satisfaction toward the platform as well as engagement with the platform, which also decreases advertising revenue and sours platform relationships with advertisers.[21] Anecdotally, after Elon Musk took over Twitter, fired much of its content moderation staff, and expressed an desire to host a less moderated platform, advertisers left Twitter citing concerns over harmful content.[22]Twitter’s ad revenue decreased 59% from a year earlier.[23] Finally, the penalties imposed by the law itself are hefty. Both the Texas and the Florida laws provide for private causes of action—with the Florida law allowing up to $100,000 in statutory damages per instance of failure to comply with the law.[24] Technology companies are waiting with bated breath for the Supreme Court’s decision, which has the potential to shake up the internet as we know it.

[1] NetChoice L.L.C. v. Att’y Gen., 34 F.4th 1196 (11th Cir. 2022).

[2] NetChoice. L.L.C. v. Paxton, 49 F.4th 439 (5th Cir. 2022).

[3] Fla. Stat. Ann. § 501.2041 (West).

[4] Tex. Civ. Prac. & Rem. Code Ann. § 143A.002 (West).

[5] See § 501.2041(2)(a)-(h); Civ. Prac. & Rem. § 143A.002(a),(b); Rebecca Kern & Josh Gerstein, Supreme Court Will Review GOP-Led Social Media Laws in Texas, Florida, Politico (Sept. 29, 2023, 12:25 PM), https://www.politico.com/news/2023/09/29/supreme-court-to-hear-challenges-to-state-social-media-laws-00119051.

[6] NetChoice L.L.C. v. Att’y Gen., 34 F.4th at 1209-10, 1227-30 (striking down the content-moderation restrictions, but upholding provisions requiring that users have access their data for 60 days and that companies must publicly post their content moderation rules).

[7] NetChoice, L.L.C. v. Paxton, 49 F.4th at 444, 494.

[8] See 47 U.S.C. § 230; Danielle Draper, Section 230 – Are Online Platforms Publishers, Distributors, or Neither?, Bipartisan Policy Center (Mar. 13, 2023), https://bipartisanpolicy.org/blog/section-230-online-platforms/ (explaining that Section 230 protects social media companies’ abilities to moderate content how they see fit and that the First Amendment protects the rights of private business to exercise editorial discretion).

[9] Jennifer Granick, Is This the End of the Internet As We Know It?, ACLU (Feb. 22, 2023), https://www.aclu.org/news/free-speech/section-230-is-this-the-end-of-the-internet-as-we-know-it#:~:text=very%20different%20place.-,Section%20230%20promotes%20free%20speech%20by%20removing%20strong%20incentives%20for,no%20editorial%20control%20were%20not.

[10] Id.

[11] Charlie Warzel, Is This the Beginning of the End of the Internet?, Atl. (Sept. 28, 2022), https://www.theatlantic.com/ideas/archive/2022/09/netchoice-paxton-first-amendment-social-media-content-moderation/671574/; Kern & Gerstein, supra note 5.

[12] Kern & Gerstein, supra note 5.

[13] See Warzel, supra note 11 (describing how Citizens United, Hobby Lobby, and Masterpiece Cakeshop were the result of 50 years of conservative activism); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 342, 372 (2010)(affirming that corporations are protected under the First Amendment and prohibiting the government from restricting corporations from taking part in independent expenditures for political campaigns); Burwell v. Hobby Lobby, 573 U.S. 682 (2014) (stating that corporations, under the First Amendment, are allowed to deny contraception coverage to employees based on religious objection) ; Masterpiece Cakeshop, Ltd v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1743-48 (2018) (J. Thomas Concurrence) (expressing that the government’s attempt to enforce anti-discrimination policy against a cakeshop owner by forcing him to create cakes for same-sex couples resulted in compelled speech which violates the First Amendment); 303 Creative L.L.C. v. Elenis, 600 U.S. 570, 596 (Affirming that the government cannot “affect a ‘speaker’s message’ by ‘forcing’ her to ‘accommodate other views’; no government may ‘alter’ the ‘expressive content’ of her message; and no government  may ‘interfere with’ her ‘desired message.’”).

[14] Warzel, supra note 11.

[15] Id.

[16] Tex. Bus. & Com. Code Ann. § 120.001 (West) (“‘Social media platform’ means an Internet website or application that is open to the public, allows a user to create an account, and enables users to communicate with other users for the primary purpose of posting information, comments, messages, or images.”); Tex. Bus. & Com. Code Ann. § 120.002(b) (“This chapter applies only to a social media platform that functionally has more than 50 million active users in the United States in  calendar month.”).

[17] Mike Masnick, Did The 5th Circuit Just Make It So That Wikipedia Can No Longer Be Edited In Texas?, TechDirt (Sept. 23, 2022, 9:43 AM), https://www.techdirt.com/2022/09/23/did-the-5th-circuit-just-make-it-so-that-wikipedia-can-no-longer-be-edited-in-texas/.

[18] Tex. Bus. & Com. Code Ann. § 120.002(b); Masnick, supra note 17; Kern & Gerstein, supra note 5; Warzel, supranote 11.

[19] Kern & Gerstein, supra note 5.

[20] Elizabeth Dwoskin, Tech Companies Are Gaming Out Responses to the Texas Social Media Law, Wash. Post (Oct. 1, 2022, 12:00 PM), https://www.washingtonpost.com/technology/2022/10/01/texas-social-media-impact/.

[21] Trevor Wagner, New Research: Hate Speech Hurts Social Media Sites, Brands, and the Digital Economy,Disruptive Competition Project (Sept. 5, 2023), https://www.project-disco.org/competition/new-research-hate-speech-hurts-social-media-sites-brands-and-the-digital-economy/; Dwoskin, supra note 20.

[22] Aisha Counts & Earni Nakano, Harmful Content Has Surged on Twitter, Keeping Advertisers Away, Time (July 19, 2023, 6:50 AM), https://time.com/6295711/twitters-hate-content-advertisers/.

[23] Ryan Mac & Tiffany Hsu, Twitter’s U.S. Ad Sales Plunge 59% as Woes Continue, N.Y. Times (June 5, 2023), https://www.nytimes.com/2023/06/05/technology/twitter-ad-sales-musk.html

[24] Fla. Stat. Ann. § 501.2041(6)(a)-(e); Tex. Civ. Prac. & Rem. Code Ann. § 143A.007.