The right to freedom of speech remains intact on the internet after the Supreme Court’s recent ruling in Moody v. NetChoice, a case centered on the government’s authority to regulate social media companies’ content moderation decisions.
The plaintiffs, a coalition of tech companies represented by NetChoice, challenged a Florida law prohibiting social media companies from de-platforming or moderating political candidates and regulating content moderation decisions. NetChoice argued that the law violated social media companies’ First Amendment right to curate speech on their platforms, the same right recognized for traditional media outlets, like newspapers.
The Supreme Court remanded the case to a lower court because a facial challenge, the type of challenge plaintiffs brought, would have to show that the law is unconstitutional in all its applications, and this case only examined posting on social media feeds. Despite not directly ruling on the merits, the Supreme Court suggested that the First Amendment protects private companies’ ability to curate and moderate content without government interference.
The majority opinion went out of its way to assert that the act of curating and moderating content is an exercise of editorial discretion akin to the editorial choices made by traditional publishers:
Like the editors, cable operators, and parade organizers this Court has previously considered, the major social-media platforms curate…a distinctive expressive offering. Their choices…‘constitute the exercise’ of protected ‘editorial control.’
While often confused with the individual right to free speech, the right to editorial discretion is also important because, without it, the government could control the flow of information via regulations on media outlets before it ever reached citizens. Reason Foundation argued similarly in our amicus brief, stating that companies possess the same First Amendment rights as individuals:
The freedom of corporate speakers to speak and the freedom of individuals to receive such speech fall comfortably within the constitutional text forbidding restrictions on freedom of speech.
Similar to the Supreme Court’s opinion, Reason’s brief argues that organizations retain the right to curate speech on their respective platforms. This principle aligns with the broader understanding that private companies have the right to determine the nature of the content they host. This is a critical constitutional right because, without it, the government could define (and then ban) misinformation, as an example, and thereby control the flow of speech online. This became a significant controversy during the government’s response to the COVID-19 pandemic.
The ability of these platforms to innovate hinges on their capacity to maintain a safe and engaging user experience through content moderation. One example of innovation is X’s (formerly Twitter), “community notes” feature, which allows users to contest information in certain posts by attaching a note to the original post with alternate information. There are now a variety of approaches to content moderation, and this experimentation can continue because of the court’s ruling.
The Supreme Court’s decision in Netchoice v. Moody is an important reaffirmation of constitutional protections afforded to social media platforms’ content moderation practices. This decision is a victory for free speech, innovation, and the principles of limited government intervention.
A version of this commentary first appeared in Florida Politics.