This document is maintained by Daphne Keller, Director of the Program on Platform Regulation at Stanford’s Cyber Policy Center. It is pretty thorough but doesn’t track every single brief or every legal detail. The document was last updated February 29, 2024.

OVERVIEW OF CASES

Texas and Florida enacted social media laws in the spring of 2021. The laws imposed so-called “must-carry” rules that limited platforms’ discretion to moderate content and set their own editorial rules. They also imposed transparency mandates, including requirements to notify users affected by content moderation decisions. The plaintiffs -- two tech industry trade associations, NetChoice and CCIA -- challenged both laws, raising arguments under the First Amendment, Dormant Commerce Clause, and Section 230. They sought preliminary injunctions enjoining the laws’ enforcement, and prevailed at the district court level in both Texas and Florida.

On appeal, the Fifth Circuit upheld the Texas law in its entirety. The Eleventh Circuit upheld some transparency provisions, but held that others and the must-carry provisions violated the First Amendment. The parties petitioned for Supreme Court review of the First Amendment issues only. On September 29, 2023, the Court agreed to review both cases under the names Moody v. NetChoice and NetChoice v. Paxton. The Court limited its review to whether the laws’ content-moderation restrictions and individualized-explanation (aka notice-and-appeal) requirements comply with the First Amendment. Oral arguments took place on February 26, 2024. In states’ briefs and in oral arguments, questions were raised about whether Section 230 should shape the Court’s conclusions about the First Amendment, despite the fact that the cases’ Section 230 claims were not formally in scope of the cert grant.

Opinions in the NetChoice cases could issue anywhere from April to June. In the meantime, further clues to the justices’ thinking on state influence over private companies’ speech-related decisions could come from the March 18, 2024 oral arguments in a pair of cases about “jawboning,” Murthy v. Missouri and NRA v. Vullo.

ARGUMENTS AND RESOLUTIONS SO FAR

Platforms raised three key claims in both cases: First Amendment, Section 230, and Dormant Commerce Clause (DCC).

In both cases, Dormant Commerce Clause arguments have been preserved in the lower courts, First Amendment arguments (about both must-carry and transparency) have been resolved by Circuit Courts and are the focus of the Court’s review. Section 230 issues were addressed in footnotes of each Circuit Court case (just for transparency in 11th, which said 230 was not relevant; maybe just for must-carry in 5th, which called the arguments “forfeited”). Section 230 was also relevant to some First Amendment analysis below, was raised by the states in their arguments about statutory interpretation, and was discussed in oral argument. So it may play a role in any Supreme Court disposition, despite not formally being part of the First Amendment question presented.

Texas Case (in chronological order)

Texas Law (H.B. 20)

H.B. 20 official copy / / Daphne Keller’s annotated copy

NetChoice Texas Complaint

NetChoice and CCIA filed suit to preliminarily and permanently enjoin portions of H.B. 20 and to declare its unconstitutionality or, in the alternative, its inapplicability to platforms. The suit did not challenge some parts of the law, including the provisions about email.

First Amendment Arguments

Must-Carry: “H.B. 20 completely denies platforms their right of editorial discretion over what appears on their websites.”
Transparency: “H.B. 20 compels disclosure of non-public, competitive sensitive information” and such “operational requirements are so costly and unworkable that they further burden the platforms' exercise of editorial judgment.”
The restrictions/exemptions are content-based and lack legislative justification, and they fail all levels of scrutiny.

Dormant Commerce, Full Faith and Credit, Due Process Arguments

COUNT III (42 U.S.C. § 1983) Violation of the Commerce Clause, the Full and Faith Credit Clause, and the Fourteenth Amendment’s Due Process Clause

H.B. 20 is per se unconstitutional under the Commerce Clause because it regulates beyond Texas’s borders, it discriminates against out-of-state firms, it discriminates against firms for engaging in inherently interstate commerce, and it discriminates against firms for refusing to engage in interstate commerce in Texas. It“is clearly excessive in relation to the putative local benefits.”

H.B. 20’s extraterritorial reach also violates the Due Process Clause of the Fourteenth Amendment and the Full Faith and Credit Clause of Article IV.

Supremacy and 230 Arguments

H.B 20’s anti-editorial-discretion provisions are inconsistent with, and thus preempted by, Section 230.

Equal Protection Arguments

H.B. 20’s definition of platforms is unconstitutionally arbitrary, under- and over-inclusive, and discriminatory. “Distinctions ‘affecting fundamental rights,’. . . trigger strict scrutiny under the Equal Protection Clause, even if the distinctions do not themselves constitute suspect or invidious classifications.”

Key Subsequent Briefing and Motions

Discovery

The Texas case spent more time on discovery than the relatively rushed Florida case, with a number of depositions being taken and documents produced. That existence of a factual record could matter to the Supreme Court resolution. (I thought I once saw a link to public copies of some of these materials, if anyone finds it and sends it to me I will add it here!)

Plaintiffs’ Motion for Preliminary Injunction

NetChoice’s motion for preliminary injunction generally reiterates the core First Amendment, Commerce Clause, and CDA Preemption arguments made in the complaint.

Texas’s Response and Motion to Dismiss

Texas’s response to the motion for preliminary injunction argues for Common Carrier characterization, which supplements Texas’s separately filed motion to dismiss (standing, discovery threats).

Texas District Court Ruling

The Court granted NetChoice’s request for a preliminary injunction. The Court ruled on First Amendment claims only as it “need not and [did] not reach the issues of whether H.B. 20 is void for vagueness, preempted by the Communications Decency Act, or violates the Commerce Clause.” [footnote 1]. The Court quickly rejects Texas’s standing argument.

Likelihood of success on…

Social Media Platforms are not common carriers, and their editorial discretion is protected by the First Amendment. (citing Tornillo, Hurley, PG&E). H.B. 20 thus violates their First Amendment rights in the following ways:

H.B. 20 “Compels Social Media Platforms to Disseminate Objectionable Content and Impermissibly Restricts Their Editorial Discretion”

Viewpoint and censorship provisions of H.B. 20 places platforms in “the untenable position” of either allowing all content or risking liability. Threat of lawsuits based on “potential” violations itself chills editorial discretion.

H.B. 20’s Disclosure and Operational Requirements (i.e. transparency provisions) Burden Social Media Platforms’ Editorial Discretion

Given the unfathomably large numbers of posts on these sites and apps, the Court applies NIFLA because the provisions “impose unduly burdensome disclosure requirements on social media platforms ‘that will chill their protected speech.’”

H.B. 20 Discriminates Based on Content and Speaker

Exceptions that allow platforms to moderate content based on “favored” harassment criteria.
Size cutoff of speakers that H.B. 20 applies to

H.B. 20 Is Unconstitutionally Vague

Plaintiffs argued based on H.B. 20’s definition of “censor”, and the Court agreed. “It strikes the Court as nearly impossible for a social media platform—that has at least 50 million users—to determine whether any single piece of content has ‘equal access or visibility’ versus another piece of content[.]” Same with “potential violations”, which lacks an imminence qualification.
Plaintiffs failed to show the Court that social media platform definition, which hinges on a website’s “primary” function, as well as H.B. 20’s transparency obligations are impermissibly vague.

H.B. 20 Fails Strict Scrutiny and Intermediate Scrutiny

No compelling/significant state interest. Even if the State’s purported interests were compelling and significant, HB 20 is not narrowly tailored.

H.B. 20’s Severability Clause is not enough to save it

5th Circuit Order Staying Preliminary Injunction

Fifth Circuit stays preliminary injunction (meaning the law can come into effect)

Supreme Court Detour (just about the stay)

The Supreme Court grants NetChoice’s request to restore the district court’s injunction against H.B. 20’s enforcement, to last until the Fifth Circuit delivers its opinion. Four justices would have let the stay of preliminary injunction stand, meaning the law would have become enforceable.

NetChoice/CCIA “Emergency Application for Immediate Administrative Relief and to Vacate Stay of Preliminary Injunction Issues by the United States Court of Appeals for the Fifth Circuit.” The supporting appendix.
Texas’ Opposition
NetChoice/CCIA’s Reply Brief
Further analysis and links to party and amicus briefs from Eric Goldman here.

Appeal to 5th Circuit

Texas appealed, all on First Amendment grounds. NetChoice responded, almost entirely on First Amendment. Argued there is no need to reach 230 and barely even mentions Commerce Clause.

5th Circuit ruling

5th Circuit ruling of September 16, 2022 overturns the district court, sides with Texas on all First Amendment issues (must-carry and transparency). A footnote says that Netchoice parties “forfeited” Section 230 arguments by mentioning them in one sentence. One dissent, one concurrence. This leaves the portion of the ruling rejecting First Amendment objections to the state law common carriage basis of Texas’s social media law with only one vote. But that doesn’t change the outcome: the whole law will come into effect unless it gets enjoined or stayed some other way, fast.

The Court emphasized problems it saw with bringing a facial challenge to the law, so it would be possible for an individual platform to bring an as-applied challenge, or wait and raise one in defense when it is sued in Texas.

The options to suspend the law again would seemingly be (1) getting a new injunction from the same District Court on new grounds (Dormant Commerce or 230), which might be hard since the District Court just got reversed for issuing the prior injunction; or (2) seeking a stay from the Supreme Court. That would require 5 votes. (Last time around, 4 Justices voted to let the law come into effect, the reasons to do so would be stronger now that the Circuit Court has ruled.)

Florida case (in chronological order)

Florida Law (S.B. 7072)

NetChoice Florida Complaint

NetChoice and CCIA filed suit to enjoin S.B. 7072.

First Amendment

Challenges Sections 2 and 4 of the Act

The sections compel covered online businesses to host content they would otherwise not allow and limit online business’ judgments about display of content.
Speaker-based (exempts book publishers and theme park owners/operators, and imposes arbitrary numeric qualifications) and content-based distinctions

Challenges Section 3 of the Act for “irrational” discriminatory treatment.

Due Process

Challenge to Sections 2 and 4 of the Act. Basically reformulates vagueness arguments, “violates due process because it fails to provide fair warning of what conduct is being regulated.”

Equal Protection

Challenge to Sections 2, 3, and 4 of the Act
Distinctions “affecting fundamental rights,” including the exercise of First Amendment rights, trigger strict scrutiny under the Equal Protection Clause, even if the distinctions do not themselves constitute suspect or invidious classifications.

For instance, theme park carve outs and the Act’s “arbitrary” definition of “social media platforms”.

The Equal Protection claim (unlike the 1st Am and Due Process claims) reaches Section 3 of the law, which creates a process for the AG to place social media platforms on a banned vendor list for state contracts, based on accusations of antitrust violations.

Commerce Clause

Challenge to Sections 2, 3, and 4 of the Act

Mostly about preferential treatment of FL businesses and theme parks, and the Act’s regulation of “wholly out-of-state conduct”. [Note this is a weaker/shorter argument than analogous arguments that were raised in the Texas case.]

The Commerce Clause claim (unlike the 1st Am and Due Process claims) reaches Section 3 of the law, which creates a process for the AG to place social media platforms on a banned vendor list for state contracts, based on accusations of antitrust violations.

Section 230

Challenge to Sections 2 and 4 of the Act on preemption argument that is generally identical to the Texas case (i.e., the Act treats platforms as publishers, contravening impermissibly with § 230).

NetChoice Motion for Preliminary Injunction

NetChoice and CCIA’s motion for preliminary injunction generally reiterated the core First Amendment and CDA 230 Preemption arguments but omitted the Commerce Clause argument. It included the weird antitrust vendor list rules of Section 3 as an example of “speaker-based retaliation.” The state’s reply is here.

Given the Supreme Court’s focus on the facial nature of platforms’ challenge in oral arguments, the arguments made at this stage in Florida may become more relevant. Notably, the platforms did argue at this stage that (as a heading in their brief put it) “The Act Is Unconstitutionally Vague[.]” In particular, it argued, the “consistency” requirement in the law was so unclear as not to “give fair notice of conduct that is forbidden or required.” Florida’s reply briefly asserted that the term was not vague, because it has a plain “ordinary meaning” and in any case must be interpreted in relation to content moderation rules that the platforms themselves set. The larger thrust of its brief mostly opposed the idea that content moderation was a protected expressive activity at all.

Florida District Court Ruling (First Amendment, Section 230)

The Court grants the preliminary injunction, which enjoins provisions that likely violate the First Amendment (e.g., shadowbanning, removing candidates, consistency). The Court does not enjoin the antitrust vendor rules in Section 3 of the law, and it separately stays the case to wait for the decision from Florida’s appeal before the 11th Circuit.

Without much elaboration, the Court held that key parts of S.B. 7072 are preempted by Section 230, including the provisions: 1) which require consistent deplatforming/shadowbanning standards ; and 2) impose liability for removing or restricting content, including right of action/damages for "censorship" or for inconsistent moderation.
The Court held that S.B. 7072 “plainly” requires strict scrutiny. Viewpoint- (perceived left bias) and content-based motivations (e.g., deplatforming, restrictions on posts “by or about a candidate.”), without more, subjects the legislation to strict scrutiny, root and branch.

Provisions are not narrowly tailored, so they would also fail intermediate scrutiny—no apparent governmental interest.
The Court held that S.B. 7072’s consistency provisions are inconsistent with the Bill itself and are otherwise “incomprehensible.”

Appeal to 11th Circuit

Florida appeals on First Amendment and on 230 grounds, as to both the must-carry and transparency/data sharing provisions of the law. It leans heavily on “common carriage” arguments, even though the statute does not discuss or apply common carriage except in a finding that social media platforms “should be treated similarly to common carriers.” (And the statute draws speaker-based distinctions that would be highly unusual in a common carriage regime. The briefs do not raise commerce clause arguments.

A critical summary Florida’s brief to the 11th Circuit, and links to amici, is here.
Brief of platforms saying the district court’s preliminary injunction should be affirmed.
Florida’s Reply brief.

11th Circuit Ruling (First Amendment)

The Eleventh Circuit, ruling almost entirely on First Amendment grounds, partially affirmed and partially vacated the district court’s preliminary injunction. It followed Florida’s lead in discussing common carriage at length, despite the marginal relevance of that doctrine in the statute at issue. The Court upheld five of the law’s six disclosure/data access provisions, and struck down all provisions that likely regulate inherently expressive conduct (i.e., moderation/censorship). In a footnote, it noted that the vendor antitrust provisions were not at issue on appeal.

Transparency

The Court upheld the preliminary injunction as to the law’s requirement to notify users about content moderation decisions, but vacated the injunction as it applied to S.B. 7072’s remaining disclosure (standards, rule changes, user view counts, candidate “free advertising”) and user-data-access provisions.

The ruling rested almost entirely on First Amendment grounds, but the Court also rejected CDA 230-based objections to the law’s transparency and data-access provisions in a footnote.

Must Carry

The Court affirmed that the covered platforms are not common carriers and their moderation is protected editorial judgment under the First Amendment.

The Bill’s content restrictions, consistency requirement, user-opt-out (of platform’s editorial discretion), and disclosure provisions implicate the First Amendment.

Cert Petitions (requesting Supreme Court review)

Florida filed a cert petition challenging every part of the 11th Circuit ruling that went against it. This doc may not be up to date and will not track every single development.

On SCOTUSblog page for Florida’s petition:

Amicus briefs from

the state of Ohio,
former President Trump,
Reynaldo Gonzalez (plaintiff in pending case, along with other plaintiffs, saying “
Alan B. Morrison (this case should be about 230, Dormant Commerce, and preemption)
the Center for Constitutional Jurisprudence
Freedom X
Philip Hamburger

The platforms’ response strongly supports review, despite their win below, because of the 5th Circuit ruling and potential for other laws like this.

Net-Choice filed a cross-petition for cert

S Ct. docket page for NetChoice’s cross-petition for cert

NetChoice’s petition, same Q presented as in its response to FL
Amicus from Cato

Process Before the Supreme Court

The Quick Version

The parties petitioned for review of the First Amendment questions in both cases. The Supreme Court agreed to hear both, but excluded some questions about transparency and about legislators’ motivations from its review. The separate questions about Section 230 are not formally part of the case, but became relevant when the states argued that the statute affects First Amendment analysis and that the Court must consider Section 230 in interpreting Florida’s statute (and perhaps also Texas’s).

More Detail

In Florida, the state lost on some issues and the platforms lost on some other issues, so both had reason to seek review. Florida’s cert petition challenged the 11th Circuit’s conclusion that its must-carry rules and some of its transparency or notice-and-appeal rules violated the First Amendment. NetChoice filed a brief in opposition, arguing that Florida was wrong on the law but that the Supreme Court should take the case anyway. It also filed a “conditional cross-petition for a writ of certiorari.” Because of the cross-petition, there were formally two Supreme Court matters: Moody v. NetChoice and NetChoice v. Moody. The Supreme Court granted cert in Moody v. NetChoice, and denied cert in NetChoice v. Moody.

In Texas, the platforms lost on all issues, so they were the ones seeking review. The Fifth Circuit agreed to pause further proceedings in its case pending NetChoice’s filing of a cert petition. NetChoice’s filed petition is here, other briefs in that case, NetChoice v. Paxton, are here.

On September 29, 2023, the Court agreed to review both cases, limiting its review to whether the laws’ content-moderation restrictions and individualized-explanation (aka notice-and-appeal) requirements comply with the First Amendment. The Court declined to review whether the laws’ general-disclosure provisions (aka general public transparency provisions) comply with the First Amendment, or whether the laws were unconstitutionally motivated by lawmakers’ own viewpoint discrimination. The Court said that its review would be “limited to Questions 1 and 2 presented by the Solicitor General,” making the SG’s brief recommending cert an important source in understanding which statutory provisions are under review.

There are some in-the-weeds questions about scope, like whether the Court should rule on Texas’s mandate to provide a means for users to track the status of appeals, and whether that state’s provisions about reporting illegal content may be in scope. Party briefs and oral argument suggested that one rule in scope is Florida’s rule prohibiting platforms from updating their Terms of Service more often than every thirty days. A list of both states’ transparency and notice-and-appeal mandates, with specific statutory sections listed, is in the beginning of my article about them.

Oral argument in the Florida and Texas cases turned in significant part to questions about what legitimate and non-First-Amendment-violating applications the laws might have. Various justices offered email, direct messages, Uber, and eCommerce sites like Etsy as potential examples of services for which a viewpoint-neutrality or “consistency” mandate might not affect any protected expressive choices by the companies. The platforms’ lawyer, Paul Clement, responded among other things by arguing that the size-based targeting of the laws rendered them unconstitutional in any case; that Florida had chosen not to litigate this question by defending its law solely on the basis that content moderation is not protected expression; and that since the law only applied when those companies do engage in expressive conduct it was still unconstitutional as to them. (For example, the law might apply to Uber if it enforces a rule against nudity or swastikas in profile pictures -- that’s my example, not Clement’s.)

This question about valid applications of the laws matters because the platforms brought facial (as opposed to as-applied) challenges to the laws, and the existence of a “plainly legitimate sweep” for a law affects the viability of facial challenges. The question is particularly significant for Florida’s law, which seems to apply to a broader array of services than Texas’s law. The significant open questions about what services are covered and what the Florida law actually requires of them might tend to support platforms’ earlier argument that the law is unconstitutionally vague. That argument was not part of the lower courts’ rulings or the parties’ briefs to the Supreme Court. Many of the justices’ questions on this point boiled down to “whose fault is it -- Florida’s or the platforms -- that this question about the law’s scope has not been litigated yet” or, in legal terms, whose “burden” is it to address that issue? As Justice Sotomayor put it,

at what point in a challenge like this one does the law become so generalized, so broad, so unspecific, really, that [the state bears] the burden of coming in and telling us what exactly the sweep is and telling us how there is a legitimate sweep … or a meaningful swath of cases that this law could cover?

Other related questions from several justices asked how the Court should rule if it agreed that the law was unconstitutional as applied to platforms like Facebook or YouTube, but believed it might have other legitimate applications. These questions were often framed very concretely in relation to the Court’s options given case’s procedural posture. As Justice Barrett asked of the platforms’ lawyer,

I have a practical question. So let's assume that I agree with you about YouTube and Facebook feeds, news feeds, but that I don't want to say that Facebook Marketplace or Gmail or DMs are not within the statute's plainly legitimate sweep… how would we write that opinion given the standard [for facial challenges]?

All briefs to the Court in the cases under review are listed in the NetChoice v. Paxton docket and/or the Moody v. NetChoice docket. Some key party briefs include the platforms’ Paxton merits brief and Moody merits brief; and Texas’s brief and Florida’s brief. The docket pages also list and link to the numerous amicus briefs filed on both sides (including the one I co-authored on behalf of Francis Fukuyama). Amici were limited to filing a single brief, even if it addressed both cases, so the two docket pages list a number of identical amicus briefs.

Other repositories of briefs and rulings:

Texas:

Texas’s H.B. 20

Texas’s Response and Motion to Dismiss

Texas District Court Order Granting Preliminary Injunction

Fifth Circuit’s Order Staying the District Court’s Injunction

Supreme Court Order Granting Emergency Application to Restore the Injunction

Additional Material including amicus briefs

Florida:

Florida’s S.B. 7072

Eleventh Circuit Order Affirming Injunction

Additional Material including amicus briefs

Eric Goldman’s Synopsis

NetChoice Resource Page