In 2021, Florida and Texas became the first U.S. states to enact laws that regulate social media platforms. Several other states have followed suit and many more are poised to do the same. The Florida and Texas laws limit the power of the largest social media companies to moderate and curate speech on their platforms and require the companies to disclose certain information to the public. Two trade organizations representing the social media companies are challenging both laws in the U.S. Supreme Court, with a decision expected by June 2024.

Federal district courts in Florida and Texas enjoined these laws, holding that the companies were likely to succeed on their First Amendment challenges. Florida appealed to the Eleventh Circuit (Moody v. NetChoice), and Texas to the Fifth Circuit (NetChoice v. Paxton), and the Knight Institute filed amicus briefs in both courts. The Fifth and Eleventh Circuits issued conflicting decisions. The Eleventh Circuit struck down the part of the Florida law that limits the power of social media platforms to moderate and curate content, but upheld most of the law’s disclosure provisions. The Fifth Circuit, in contrast, upheld Texas’s law in its entirety. On September 29, 2023, the Supreme Court granted cert. in both cases.

On December 7, 2023, the Knight Institute filed an amicus brief in the Supreme Court in both cases. The brief urges the Court to reject the parties’ extreme theories of how the First Amendment should apply to the regulation of social media. The platforms contend that any regulation implicating their content-moderation decisions is likely unconstitutional, while Florida and Texas argue that content-moderation decisions do not implicate the First Amendment at all. The Knight Institute’s brief argues that social media platforms’ content-moderation decisions are protected by the First Amendment because they reflect the exercise of editorial judgment, but that this protection is limited. Under a proper interpretation of the First Amendment, the brief argues, the Court should hold both states’ “must-carry” provisions unconstitutional because they override platforms’ editorial judgment and cannot satisfy even intermediate scrutiny.

The brief also urges the Court to reject the parties’ most extreme arguments about the Florida and Texas laws’ disclosure provisions, because, as the Court has said in other contexts, regulations that require businesses to disclose purely factual and uncontroversial information about their services are constitutional unless they are “unjustified” or “unduly burden[] protected speech.” Applying this First Amendment framework, the Knight Institute argues that the Court should invalidate the Florida disclosure provision at issue because it unduly burdens speech—the platforms’ editorial judgment—but should uphold the corresponding Texas disclosure provision, because it does not.

Status: Opinion filed on July 1, 2024.

Case Information: Moody v. NetChoice, No. 22-277 (Supreme Court); NetChoice v. Paxton, No. 22-555 (Supreme Court).