In a past Trending Law Blog post on November 1, 2023, we discussed how the Supreme Court of the United States granted petitions for certiorari in Florida’s NetChoice LLC v. Moody case and Texas’ NetChoice LLC v. Paxton matter. In Moody, the Eleventh Circuit upheld an injunction of Florida’s law regulating large social media companies and other internet platforms; in Paxton, the Fifth Circuit reversed a preliminary injunction of a similar Texas statute. In granting the petitions for certiorari, the Supreme Court agreed to resolve the split between the two Courts of Appeal.

On July 1, 2024, the Supreme Court issued its decision in the consolidated matters, vacating the decisions of both the Fifth and Eleventh circuits and holding that neither of those courts had conducted a proper analysis of the Florida and Texas statutes to determine if they facially violated the First Amendment. In its decision, the Court provided guidance to the lower courts and identified various factors to be considered on the remands. The majority opinion written by Justice Kagan, particularly in Part III of the decision, laid out in detail the First Amendment concerns that states (and courts) should take into consideration when trying to regulate expressive content on social media platforms.

Justice Alito, however, in his opinion concurring in the judgment only, expressed his discontent with the majority decision as follows: “The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenge are facially unconstitutional. Everything else in the opinion is nonbinding dicta.”

Although the Supreme Court’s decision in Moody and Paxton may provide some encouragement to social media platforms looking to resist laws such as those enacted in Texas and Florida, the matter is still very much unsettled, and it will likely remain so for the foreseeable future as the cases move forward on remand and then again through the appeals process. Stay tuned.

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