What restrictions can social media companies like Facebook, Twitter, Instagram and Tik-Tok on their social media platforms?  The First Amendment to the United States Constitution protects free speech and the case of Moody v. NetChoice that is before the United States Supreme Court on a petition for certiorari may redefine what it means to be a public forum and when private companies can limit speech on a platform that has global reach.  You can reach about the Moody case on the Scotus Blog.

The issues in Moody v. NetChoice, LLC are whether the First Amendment precludes a state from requiring social-media companies to host third-party communications and regulating when, where, and how they do so; and whether the First Amendment precludes a state from requiring social-media companies to notify and explain to their users when they censor the user’s speech.

In their petition for writ of certiorari, Florida officials argue that the Eleventh Circuit’s decision in Moody v. NetChoice, LLC violates the First Amendment’s protection of free speech and the ability of private entities to exercise editorial discretion in the content they host on their platforms. The Florida officials specifically argue that the Eleventh Circuit erred in ruling that Florida’s law, which requires social media companies to host third-party communications and regulates when, where, and how they do so, is unconstitutional.

The public forum doctrine is an important aspect of First Amendment case law. Certain spaces, such as streets, parks, and government buildings, are defined as traditional public forums where individuals have the right to express themselves. The government may regulate the time, place, and manner of speech in these areas, but it cannot discriminate based on content.

Other types of forums, such as limited public forums and nonpublic forums, have also been recognized by the Supreme Court. The government has opened spaces for expressive activities but has reserved them for a specific group or subject matter in limited public forums. Nonpublic forums are places where people do not normally express themselves, such as airports or military bases. The government has broad discretion in these forums to regulate speech based on content, as long as the regulation is reasonable and viewpoint-neutral.

In the Moody case, the question is whether social media platforms are public forums or private entities with editorial control over their platforms. If the Supreme Court rules that social media companies are public forums, the government will be able to more tightly regulate speech on these platforms than if they were private entities. If the Supreme Court rules that social media companies are private entities, the companies will have greater control over the content on their platforms.

Background of the Moody Case

Florida Governor Ron DeSantis signed Senate Bill 7072 into law in May 2021, with the goal of regulating social-media companies’ speech by requiring them to host third-party communications and regulating the time, place, and manner in which they do so. Furthermore, the law required social-media companies to notify and explain to users when their speech is censored.

NetChoice, a trade association representing social-media companies, filed a lawsuit in federal court challenging the law’s constitutionality in response. Florida Attorney General Moody filed a motion to dismiss the lawsuit, which the district court granted. NetChoice then filed an appeal with the Eleventh Circuit, which overturned the district court’s decision and ruled that Florida’s law violated the First Amendment.

According to Florida officials, social media companies are not public forums and thus are not subject to the First Amendment’s public forum doctrine. Rather, they argue that social media companies are private entities with the right to decide what content is hosted on their platforms. According to Florida officials, Florida’s law, which seeks to regulate the content hosted on these platforms, violates the social-media companies’ First Amendment rights to free speech and editorial discretion.

Furthermore, Florida officials contend that the state’s law requiring social-media companies to notify and explain to their users when they censor their speech is unconstitutional. They argue that the requirement compels social media companies to engage in compelled speech, which violates their First Amendment rights.

Overall, Florida officials argue that the Eleventh Circuit’s decision in Moody v. NetChoice, LLC undercuts private entities’ ability to exercise editorial discretion over the content they host on their platforms and violates the First Amendment’s free speech protection. As a result, they are seeking Supreme Court review to resolve this critical constitutional issue.

The case of Moody v. NetChoice, LLC raises significant constitutional issues concerning the regulation of social media companies and the protection of free speech. The Eleventh Circuit’s decision emphasizes private entities’ editorial control over the content they host on their platforms, as well as the limitations on government regulation of that content. However, the decision raises concerns about how social media companies should be regulated.

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