Platforms Have First Amendment Right to Curate Speech, As We’ve Long Argued, Supreme Court Said, But Sends Laws Back to Lower Court To Decide If That Applies To Other Functions Like Messaging

Social media platforms, at least in their most common form, have a First Amendment right to curate the third-party speech they select for and recommend to their users, and the government’s ability to manipulate those processes is extremely limited, the U.S. Supreme Court stated in its landmark decision in Moody v. NetChoice and NetChoice v. Paxton, which were decided together. 

The cases dealt with Florida and Texas laws that each limited the ability of online services to block, deamplify, or otherwise negatively moderate certain user speech.  

Yet the Supreme Court did not strike down either law—instead it sent both cases back to the lower courts to determine whether each law could be wholly invalidated rather than challenged only with respect to specific applications of each law to specific functions. 

The Supreme Court also made it clear that laws that do not target the editorial process, such as competition laws, would not be subject to the same rigorous First Amendment standards, a position EFF has consistently urged. 

This is an important ruling and one that EFF has been arguing for in courts since 2018. We’ve already published our high-level reaction to the decision and written about how it bears on pending social media regulations. This post is a more thorough, and much longer, analysis of the opinion and its implications for future lawsuits. 

A First Amendment Right to Moderate Social Media Content 

 The most important question before the Supreme Court, and the one that will have the strongest ramifications beyond the specific laws being challenged here, is whether social media platforms have their own First Amendment rights, independent of their users’ rights, to decide what third-party content to present in their users’ feeds, recommend, amplify, deamplify, label, or block.  The lower courts in the NetChoice cases reached opposite conclusions, with the 11th Circuit considering the Florida law finding a First Amendment right to curate, and the 5th Circuit considering the Texas law refusing to do so. 

The Supreme Court appropriately resolved that conflict between the two appellate courts and answered this question yes, treating social media platforms the same as other entities that compile, edit, and curate the speech of others, such as bookstores, newsstands, art galleries, parade organizers, and newspapers.  As Justice Kagan, wr