Publication
Journal of Free Speech Law
Volume
6
Page
1
Year
2025
Abstract
This Article examines the Supreme Court’s 2024 decision in Moody v. NetChoice and its implications for social media platform regulation. In Moody, which addressed state laws requiring platforms to host certain content, the Court issued a complex set of opinions that left the scope of platforms’ First Amendment rights uncertain. On the procedural question of how such laws may be challenged, the Court provided a clear holding: it rejected facial challenges to broad content-moderation laws, instead requiring case-by-case analysis of how specific regulations affect different platform features—a shift that undermines the tech industry’s longstanding litigation strategy. But on the substantive question of whether such laws are constitutional, the path forward remains murky. While Justice Kagan’s majority opinion articulated a framework favoring robust protection for content moderation, five Justices, across three separate concurrences, expressed skepticism toward broad editorial rights for platforms, and much of the majority's First Amendment discussion may ultimately prove to be nonbinding dicta. Given this uncertainty, we argue that courts applying Moody should move beyond abstract questions about whether platforms qualify as “editors” and instead examine how specific regulations concretely affect the speech interests of platforms, users, and society. Building on this framework, we analyze the specific features that made the Texas and Florida laws at issue in the case constitutionally problematic and propose alternative regulatory approaches—such as content-neutral design requirements, procedural protections, and narrowly targeted access rights—that could withstand First Amendment scrutiny while advancing legitimate governmental interests in ensuring broad public access to the digital public sphere.
Recommended Citation
6 J. Free Speech L 1 (2025)
