NetChoice v. Paxton and Moody v. NetChoice

Free speech online is under threat, and that is particularly true on social media platforms like X (the company formerly known as Twitter), Facebook, and Instagram. Responding to the perception that large social media companies were enforcing their terms of service to discriminate against conservative politicians and pundits, Texas and Florida enacted laws giving each state control over the platforms’ content management process. 

The U.S. Court of Appeals for the Eleventh Circuit enjoined parts of the Florida law on First Amendment grounds, but the Fifth Circuit upheld the Texas law in full, expressing that the law regulated “censorship,” not speech. But social media platforms are private actors, not government censors. Their decisions on what content to host on their sites, and what user accounts to allow, are editorial decisions protected by the First Amendment. 

On December 6, 2023, FIRE filed an amicus brief in support of NetChoice, an industry trade group for social media platforms and other Internet companies, with the Supreme Court of the United States asking it to affirm the Eleventh Circuit and reverse the Fifth Circuit. The brief explains that the First Amendment affords all publishers the same speech and press protections, whether they publish on a printing press, a movie screen, or an online platform.

In an opinion remanding both cases for further proceedings, the Supreme Court agreed with FIRE’s brief. The ruling clarifies that there’s no social media exception to the First Amendment. The Fifth Circuit in particular was wrong to find Texas’s law did not burden expression, and it was wrong to accept as valid Texas’s alleged interest in balancing out the marketplace of ideas.