After NetChoice, Internet Companies Face Hard Work in Court

In what was one of the most highly watched cases of the Term, the Supreme Court in June handed down its decision in the social media cases Moody v. NetChoice and NetChoice v. Paxton.

Both sides declared victory because both sides could point to parts of the decision good for their side. But the real winners will be the lawyers: the Court sent the cases back to be litigated and require extensive investigation on the scope of the Florida and Texas laws. 

NetChoice would be happy that the Supreme Court recognized that Florida and Texas laws are more sweeping than the laws’ sponsors suggest. The Court affirmed that when a website exerts editorial control over content, then the cases fall under the protections for speech (and what not to speak) under the First Amendment. Indeed, much of Justice Elena Kagan’s majority opinion is focused on telling the Fifth Circuit that “was wrong in concluding that Texas's restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression. And the court was wrong to treat as valid Texas's interest in changing the content of the platforms’ feeds.” 

Social media companies are not off the hook

This is well and good, except that the Court was concerned that there could be valid uses of the law in contexts besides curated social media feeds from YouTube, Meta or X. The Supreme Court therefore sent the case for more fact finding to see if the laws harmed other websites too. Because the states live on to fight for another day, Florida Attorney General Ashley Moody declared victory. 

The case focuses on the difference between “facial” and “as-applied” challenges that a law violates the First Amendment. Facial rulings hold that the entire law is unconstitutional because all of the law’s applications violate the rights of free speech. As-applied rulings are narrower, focusing on the facts presented by the challengers about their unique activity. As-applied rulings can still be effective, but they require more work at the trial level to determine a law’s impact on a particular speaker, press outlet, or website. 

And thus highlights a problem of the “social media-ifcation” of much of the Internet. Because there is so much feedback, comments, voting (“likes”), and other user interaction on sites that are not thought of as “social media,”the Court was concerned how the Florida and Texas laws applied to these other outlets. Would Uber rider reviews be covered? What about Etsy shipping feedback?

These lingering questions meant that NetChoice was not entitled to facial relief and would need to prove the scope of the law was unconstitutional in most, if not all, applications. This will be labor intensive, and expensive. 

So the next steps for NetChoice–representing its membership and the internet more broadly–is to show how even shopping sites or rideshare apps also curate user input. Websites should therefore be ready to show how content moderation policies and choosing to highlight “verified purchasers” or “most recent” reviews is a way of curating and helping users find relevant reviews and feedback. Policies aimed at removing harassment or political discussion of restaurant reviews would also be helpful for the courts in reconsidering the Florida and Texas laws.

Developing a proper legal record is important 

All of this takes time to develop a proper record, but it’s well worth doing, as can be seen in a pair of cases dealing with disclosure of nonprofit donors from a few years ago. In the landmark decision of Americans for Prosperity Foundation v. Bonta, the nonprofit organization took great pains–that is, great cost–at trial to detail the level of threats the organization and its donors faced everyday.

Americans for Prosperity Foundation highlighted attempts to breach security to find out its donors by ideological opponents who lied to work in “belly of the beast” to gain non-public information. Trial also showed knife attacks at various Foundation events and other threats. 

Contrast that with a companion case, Center for Competitive Politics v. Harris, which came up through the court system quickly based on motion for preliminary injunction–very similar to the truncated process used to get the pair of NetChoice challenges. Competitive Politics stalled and eventually failed to get Supreme Court review. Perhaps it moved too quickly for the justice’s liking. Either way, a couple of years later, the trial in Americans for Prosperity Foundation laid the framework for a major win. That is still possible here too.

The Florida and Texas laws are worrisome for the future of the Internet. But what the NetChoice decision signals is that there will be no easy victories. The regulated community must prepare for longer court battles and be ready to teach judges how the content moderation, user interaction, and company policy work in the real world. Either way, the underlying issues will return to the Supreme Court on the merits in the coming years.

Tyler Martinez is a senior attorney at National Taxpayers Union Foundation, which filed an amicus curiae brief in support of NetChoice before Supreme Court. Prior to his work at NTUF, he was a First Amendment litigator and Executive Editor of the Journal on Telecommunications and High Technology Law (now the Colorado Tech Journal). This Expert Opinion is exclusive to Broadband Breakfast.

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