SCOTUS says content moderation protected by First Amendment

Ruling remands TX and FL NetChoice cases over 1A concerns

Jul 1, 2024

On Monday, the U.S. Supreme Court ruled in NetChoice v. Paxton and Moody v. NetChoice that Florida and Texas laws restricting the right of online platforms to moderate content are unlikely to survive First Amendment scrutiny. Writing for the majority, Justice Elena Kagan argued that, “To the extent that social-media platforms create expressive products, they receive the First Amendment’s protection.” The ruling quashes “common carrier” legal theories that suggested social media platforms were exempt from First Amendment speech protections.

“This court plainly recognizes that social media curation – including algorithmic curation – is protected speech,” said Chamber of Progress Legal Director Jess Miers. “Today’s decision means that the government will have a very high bar to clear in order to abridge the speech rights of online platforms and users. Again and again, the majority in this opinion reaffirms what we already knew: content moderation is protected squarely by the First Amendment. If anything, this ruling squashes the common carrier theory of social media regulation once and for all.”

Chamber of Progress joined a coalition of tech and civil society groups in an amicus brief urging the Supreme Court to strike the laws down. In their brief, the groups argue that Texas’s and Florida’s laws effectively amplify harmful content by tying the hands of platforms that would otherwise take down hate speech and misinformation.

The decision also has important legal implications for kids digital legislation, including AADC legislation recently passed by Maryland, anti-algorithm legislation passed by New York, and proposed digital legislation in California. In all of the aforementioned cases, the Supreme Court’s application of the First Amendment to social media content moderation decisions suggests these laws violate the Constitution.


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