NetChoice v. Paxton

NetChoice v. Paxton addressed state regulation of social media content moderation. The case, which challenged Texas House Bill 20, was decided together with Moody v. NetChoice, the separate challenge to Florida’s SB 7072, in a single opinion issued under the Moody caption on July 1, 2024. The Court did not uphold or strike down either law. It vacated both courts of appeals’ judgments and remanded, holding that neither court had properly analyzed the facial First Amendment challenges, and it explained how the First Amendment applies to platforms’ content-moderation choices to guide the analysis on remand.

Legal Background

Challenge Origins: NetChoice, a trade association representing major tech platforms, filed suit to challenge Texas House Bill 20 before the law took effect. HB 20, signed on September 9, 2021, prohibited large social media platforms from restricting content based on user viewpoint.

Circuit Split: District courts in both states preliminarily enjoined the laws. The 5th Circuit reversed the injunction against Texas HB 20, reasoning that content moderation is not speech, while the 11th Circuit largely upheld the injunction against Florida’s SB 7072 on the ground that content moderation is protected editorial discretion. The Supreme Court granted review in both cases and heard them together.

Key Provisions

The Supreme Court’s July 1, 2024 decision set out several principles:

Facial Challenge Requirements: A facial First Amendment challenge succeeds only if a law’s unconstitutional applications substantially outweigh its constitutional ones. A court must first determine the full range of activities a social media law covers, then measure the unconstitutional applications against the rest. Neither court of appeals had done so, which is why both judgments were vacated.

Editorial Judgment Protection: When a platform compiles and curates third-party content into an expressive product, that curation is protected expressive activity, and a state may not require the platform to carry speech it would exclude in order to balance the mix of views.

Remand Standards: After determining a law’s scope, a court must decide which applications violate the First Amendment and 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. For the individualized-explanation provisions in either law, it means asking, as to each thing covered, whether the required disclosures unduly burden expression, a standard the Court stated with a citation to Zauderer v. Office of Disciplinary Counsel. The Court did not itself analyze either law’s individualized-explanation provisions; Justice Thomas, concurring in the judgment, noted that the Court assumed the Zauderer framework applies because the trade associations had not contested its applicability below.

Impact on Digital Platforms

The decision addressed platform regulation through:

• Establishing constitutional framework for evaluating state social media laws
• Protecting platform editorial discretion while allowing some regulatory oversight
• Requiring detailed factual development before facial constitutional challenges
• Creating precedent for First Amendment analysis of content moderation restrictions
• Leaving both state laws in litigation, so state-by-state variation in what is permitted remains possible

Legal Challenges and Evolution

Supreme Court Remand: The Court vacated both the 5th and 11th Circuit judgments. All nine justices agreed on that disposition, though several wrote separately with differing reasoning on the underlying First Amendment questions. The Court called for a full facial analysis in the lower courts rather than a broad ruling on platform rights versus state authority.

Ongoing Litigation: The cases returned to the lower courts for factual development on each law’s scope and applications. On November 7, 2024, the 5th Circuit remanded the Texas case to the district court for discovery and fact-finding, noting that the record was underdeveloped on who and what HB 20 covers.

Constitutional Framework: The Court’s reasoning treats a platform’s curation of a feed as expressive activity within the First Amendment, while leaving open how the analysis applies to other covered services and functions, which is the question the lower courts must work through on remand.

Digital Politics Implications

The case affects digital political organizing by:

• Preserving platform ability to moderate political content while allowing state oversight
• Leaving unresolved how the laws apply to services and functions beyond curated feeds
• Establishing framework for future state attempts to regulate political speech online
• Requiring platforms to balance First Amendment rights with compliance obligations

The Supreme Court’s remand returned the cases to lower courts for further proceedings on the boundaries between platform editorial rights and state regulatory authority, with the outcome affecting how political discourse is moderated across different jurisdictions.