The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

S. Ct. Recognizes Platforms' Right to Choose What Appears in "Curated Feeds," Doesn't Resolve Other Content Moderation Questions


In today's Moody v. Netchoice, LLC, the Supreme Court sent back to lower courts the cases considering whether (and when) the Florida and Texas limits on social media content moderation are constitutional. The decision was complicated and limited, so here's a general summary.

[1.] Remember that the lawyer's true superpower is to turn every question into a question about procedure. Here, that procedural question was whether Netchoice—a consortium of internet technology companies—can challenge the Florida and Texas laws on their face as "overbroad," or must challenge the laws "as applied" to particular company practices. The Supreme Court unanimously concludes that the lower courts erred in deciding the overbreadth question; here's Justice Kagan's majority opinion on this, though all Justices generally agree on this point:

The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms—as if, say, each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed.

But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment. As explained below, the question in such a case is whether a law's unconstitutional applications are substantial compared to its constitutional ones.

To make that judgment, a court must determine a law's full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry.

[2.] Justice Kagan's five-Justice majority (written for herself, Justice Sotomayor, Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett) concludes that the First Amendment likely protects the rights of platforms to pick and choose what appears in those "curated feeds," in particular "Facebook (or YouTube) … using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts in its News Feed (or homepage)."

The majority held that a platform, like a newspaper, a parade organizer, and the like, generally has a First Amendment right to "compil[e] … third-party speech it wants in the way it wants," and thus "offer[] the expressive product that most reflects its own views and priorities":

A private party's collection of third-party content into a single speech product (the operators' "repertoire" of programming) is itself expressive, and intrusion into that activity must be specially justified under the First Amendment.

And the majority concluded that this right is protected notwithstanding the state's interest in trying to promote a broader range of views on social media platforms.

(I should note here that I think this is likely right; as I noted in a 2021 article, "Social media platforms …, in effect, recommend new material to readers, for instance
under 'What's happening' or 'Who to follow' in the right sidebar on Twitter; on
the front page of YouTube; and … Facebook's news feeds or Google News…. [T]his, I think, is indeed the platforms' own speech, and the government may not tell the platforms how to compose it.")

[3.] But the majority did not decide whether the First Amendment extends to platforms' many other functions—such as platforms' decisions whether to "deplatform" users in a way that keeps readers from seeing the user's posts even when they deliberately seek out those posts. Indeed, the Court recognized that property owners may have First Amendment rights to make some decisions about hosting speech on their property, but not other decisions:

Of course, an entity engaged in expressive activity when performing one function may not be when carrying out another. That is one lesson of Rumsfeld v. FAIR (2006). The Court ruled as it did [holding that Congress could bar universities from excluding military recruiters -EV] because the law schools' recruiting services were not engaged in expression. The case could not have been resolved on that ground if the regulation had affected what happened in law school classes instead.

(Here, the Court meant that the presence of military recruiters in the program wasn't the expression of the law schools' own recruiting services; the recruiting pitches surely were the recruiters' expression.)

The majority does note, in its discussion of how platforms operate, that the platforms sometimes "remov[e] a post" altogether because of its content; such removal would make the post invisible even to people who deliberately go to the author's page to see it. But I don't think the majority resolves this issue: Instead, the majority repeatedly focuses on "the major social-media platforms … curating their feeds[ by] combining 'multifarious voices' to create a distinctive expressive offering." And its conclusion returns to the platforms' First Amendment rights to create those curated, compiled multi-author feeds:

The parties treated Facebook's News Feed and YouTube's homepage as the heartland applications of the Texas law. At least on the current record, the editorial judgments influencing the content of those feeds are, contrary to the Fifth Circuit's view, protected expressive activity.

Lower courts will have to decide these questions, though doubtless in some measure influenced by the majority's broader statements about platforms' First Amendment rights. (My article, which I noted above, discusses those questions, as do many other articles in the symposium in which it was published.)

[4.] Likewise, the majority didn't decide whether state law could permissibly ban platforms from discriminating based on viewpoint in (say) direct messages on various social media platforms, e-mail on Gmail, and the like (emphasis added):

The next order of business [in an overbreadth inquiry] is to decide which of the laws' applications violate the First Amendment, and to measure them against the rest. For the content-moderation provisions, that means asking, as to every covered platform or function, whether there is an intrusion on protected editorial discretion…. Even on a preliminary record, it is not hard to see how the answers might differ as between regulation of Facebook's News Feed (considered in the courts below) and, say, its direct messaging service (not so considered). Curating a feed and transmitting direct messages, one might think, involve different levels of editorial choice, so that the one creates an expressive product and the other does not.

Justice Barrett's concurrence similarly added:

If NetChoice's members are concerned about preserving their editorial discretion with respect to the services on which they have focused throughout this litigation—e.g., Facebook's Newsfeed and YouTube's homepage—they would be better served by bringing a First Amendment challenge as applied to those functions. Analyzing how the First Amendment bears on those functions is complicated enough without simultaneously analyzing how it bears on a platform's other functions—e.g., Facebook Messenger and Google Search—much less to distinct platforms like Uber and Etsy.

Indeed, the majority made clear that the First Amendment does not give property owners a categorical right to exclude speakers from their property (emphasis added):

We have repeatedly faced the question whether ordering a party to provide a forum for someone else's views implicates the First Amendment. And we have repeatedly held that it does so if, though only if, the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt.

[5.] Justice Barrett's concurrence stressed the impropriety, in her view, of entertaining an overbreadth challenge here (and also added some asides related to foreign-owned platforms and to AI moderation, which I discussed in separate posts).

Justice Jackson, who concurred in part and concurred in the judgment, would have focused just on concluding that the overbreadth claims were premature. She would have avoided the First Amendment questions altogether, except for saying that "I agree with Justice Barrett that the Eleventh Circuit at least fairly stated our First Amendment precedent, whereas the Fifth Circuit did not." Justice Jackson didn't join the part of the majority opinion applying those precedents to these cases. Instead, she wrote: "Faced with difficult constitutional issues arising in new contexts on undeveloped records, this Court should strive to avoid deciding more than is necessary."

Justice Thomas would have gone further and rejected the overbreadth doctrine altogether, requiring challengers to bring solely as-applied challenges (which is pretty much the norm outside First Amendment law).

[6.] Justice Alito, joined by Justices Thomas and Gorsuch likewise agreed that the lower courts' overbreadth decision was premature, but these three Justices declined to join the majority's First Amendment analysis as to the "curated feeds" (though without concluding outright that the analysis was wrong). Among other things, Justice Alito's opinion reasoned:

The majority states that it is irrelevant [for a platform's First Amendment claim of a right to choose what to include in a compilation] whether "a compiler includes most items and excludes just a few." That may be true if the compiler carefully reviews, edits, and selects a large proportion of the items it receives. But if an entity, like some "sort of community billboard, regularly carr[ies] the messages of third parties" instead of selecting only those that contribute to a common theme, then this information becomes highly relevant. Entities that have assumed the role of common carriers fall into this category, for example. And the States defend portions of their laws on the ground that at least some social-media platforms have taken on that role. The majority brushes aside that argument without adequate consideration….

[T]he host must [also] use the compilation of speech to express "some sort of collective point"—even if only at a fairly abstract level. Thus, a parade organizer who claims a First Amendment right to exclude certain groups or individuals would need to show at least that the message conveyed by the groups or individuals who are allowed to march comport with the parade's theme. A parade comprising "unrelated segments" that lumber along together willy-nilly would likely not express anything at all. And although "a narrow, succinctly articulable message is not a condition of constitutional protection," compilations that organize the speech of others in a non-expressive way (e.g., chronologically) fall "beyond the realm of expressi[on]."

And the Alito concurrence in the judgment suggested that the advent of social media might call for changes in the legal framework more broadly—something that the majority generally rejected:

[T]he majority[] conspicuous[ly] fail[s] to address the States' contention that platforms like YouTube and Facebook—which constitute the 21st century equivalent of the old "public square"—should be viewed as common carriers. Whether or not the Court ultimately accepts that argument, it deserves serious treatment.

Instead of seriously engaging with this and other arguments, the majority rests on NetChoice's dubious assertion that there is no constitutionally significant difference between what newspaper editors did more than a half-century ago at the time of Tornillo and what Facebook and YouTube do today.

Maybe that is right—but maybe it is not. Before mechanically accepting this analogy, perhaps we should take a closer look. Let's start with size…. No human being could possibly review even a tiny fraction of this gigantic outpouring of speech, and it is therefore hard to see how any shared message could be discerned….

Now consider how newspapers and social-media platforms edit content. Newspaper editors are real human beings, and when the Court decided Tornillo (the case that the majority finds most instructive), editors assigned articles to particular reporters, and copyeditors went over typescript with a blue pencil. The platforms, by contrast, play no role in selecting the billions of texts and videos that users try to convey to each other. And the vast bulk of the "curation" and "content moderation" carried out by platforms is not done by human beings…

Other questions abound. Maybe we should think about the enormous power exercised by platforms like Facebook and YouTube as a result of "network effects." And maybe we should think about the unique ways in which social-media platforms influence public thought.

To be sure, I do not suggest that we should decide at this time whether the Florida and Texas laws are constitutional as applied to Facebook's News Feed or YouTube's homepage. My argument is just the opposite. Such questions should be resolved in the context of an as-applied challenge. But no as-applied question is before us, and we do not have all the facts that we need to tackle the extraneous matters reached by the majority.

As I read Justice Jackson's much briefer opinion, she likewise seemed open to the possibility that social media might call for a new sort of First Amendment analysis (though I have no reason to think that she and Justices Alito, Thomas, and Gorsuch would agree on what that analysis should be).

[6.] More in future posts about other matters, including the Florida and Texas laws' disclosure requirements.