Loading...
Moody v. NetChoice: The Supreme Court Meets the Free Speech Triangle
Balkin, Jack M.
Balkin, Jack M.
Collections
Abstract
Concerned that large social media companies discriminated against conservative voices, Texas and Florida passed laws regulating how social media companies could moderate posts, sanction speakers, and promote or demote content. Conservative politicians in the two states were deeply suspicious of the large social media companies headquartered in the Bay Area of liberal California. They believed that these social media companies, Meta, YouTube, and Twitter, were unfairly removing conservative speech, demoting it in social media feeds, or de-platforming conservative speakers. Texas and Florida sought to restore online ideological balance and prevent what they considered censorship by the companies’ progressive employees.
The states argued that in curating and organizing content social media companies were not actually engaged in First Amendment speech; they were only engaged in private censorship. In the alternative, the states argued that they could treat social media platforms as common carriers or otherwise subject the platforms to nondiscrimination rules to promote a diversity of ideas and opinions.
Because the state statutes were so broadly (and badly) drafted, the Supreme Court did not rule on the merits but instead sent the cases back to the lower courts with instructions about the First Amendment rights of social media companies. Justice Elena Kagan’s majority opinion in Moody v. NetChoice, LLC4 held that when social media companies curate posts, they make “editorial judgments†and create an “expressive product†protected by the First Amendment.5
The Supreme Court began considering internet speech cases almost three decades ago, in Reno v. American Civil Liberties Union.6 But social media companies as we know them today did not exist in 1997. Moody was the Court’s first attempt at explaining how the First Amendment applied to the business models of the social media companies that now dominate the digital public sphere. Moody was also the Court’s first attempt at thinking through the problems of a digital public sphere in which states are no longer the only governors and regulators of free expression and must contend with powerful global corporations that shape public opinion and dominate democratic life. Finally, Moody also offered brief hints about how the First Amendment might apply to content produced by algorithms and artificial intelligence (AI).
In this Article, I explain how the digital public sphere differs from the world that produced most of the Court’s First Amendment doctrine. I then explain how the Court both recognized and failed to recognize those changes. Moody’s reasoning displays many of the limitations of American First Amendment doctrine. It asks whether states are abridging the speech of platforms, but it does not consider the free speech interests of end users. Focusing on platforms as speakers, it plays less attention to platforms as governors. Although Moody does not close the door on regulations designed to check the governing power of digital platforms, it bestows significant First Amendment protections on the ways that social media platforms govern end users.