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Moody v. NetChoice, LLC: The Supreme Court
Addresses Facial Challenges to State Social
Media Laws
September 11, 2024
On July 1, 2024, the Supreme Court vacated the judgments in two consolidated First Amendment
challenges to state laws that regulate certain online platforms' moderation of user-posted content and
remanded the cases for further proceedings. The courts of appeals that decided the two challenges had
disagreed about how the First Amendment applies to the state-imposed content moderation restrictions
under review. In Moody v. NetChoice, LLC, the Supreme Court held that neither court had analyzed the
full scope of the laws' applications-as is required when, as in these cases, a party contends that a law is
unconstitutional on its face. This Sidebar summarizes the Moody opinion and discusses related
considerations for Congress.
Legal Background
The First Amendment
The First Amendment prohibits Congress and state governments from enacting laws that abridg[e] the
freedom of speech. Its protections can apply when a business creates its own speech. The amendment
can also protect the exercise [of] editorial discretion over the speech and speakers in [a] forum when a
private entity creates a forum to host others' speech.
The Supreme Court has applied the editorial-discretion-based reasoning to invalidate a law that would
have compelled newspapers to print responses from candidates for political office if the newspapers
published criticisms of the candidates. The Court has employed similar reasoning when holding that the
First Amendment protects the rights of parade organizers to exclude a group of marchers who would
impart[] a message the organizers d[id] not wish to convey and the rights of a privately owned utility
company to exclude consumer-advocacy materials from a newsletter the company produced.
The Supreme Court has also recognized limits to the First Amendment's protection of speech hosts. The
Court has held that a state could, without violating the First Amendment, compel the owner of a shopping
center to allow high school students to distribute pamphlets and seek petition signatures in an area of the
Congressional Research Service
https://crsreports.congress.gov
LSB11224
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/goveqoo0001&div=1&collection=&method=preview&ext=.png&size=3)