Moody v. NetChoice, LLC

THE SPEECH QUALITY OF CONTENT HOSTING

Moody, et al. (“Moody”) argue that Florida’s content-moderation restrictions only regulate NetChoice’s members’ conduct, not their speech. Brief for Petitioners, Moody et al. at 14-15. Specifically, Moody asserts that NetChoice’s members engage in the conduct of hosting their users’ speech. Id. at 15. Moody contends that the First Amendment only protects conduct that is “inherently expressive” and that determining whether conduct is expressive turns on both the regulated conduct and the regulating law. Id. at 15-16. Particularly, Moody says that the Supreme Court has routinely allowed the government to “prevent[] private entit[ies] that generally open [their] doors to all speakers and speech from arbitrarily censoring those speakers.” Id. at 17. Moody points to Prune-Yard Shopping, where the Supreme Court found that a state could require a shopping mall to allow people to collect petition signatures on mall property. Id. Moody emphasizes that the Court supported this finding because the mall was not selective in who it admitted and that the public would not misattribute the solicitors’ speech to the mall owner. Id.

Moody next turns to the common carrier doctrine, where common law governments regulate the conduct of businesses that hold themselves out to provide common services to everyone, including inns, telegraphs, and phone lines. Id. at 19-20. Moody argues that NetChoice’s members are analogous to these traditional common carriers because they generally allow users to post content freely without review, often in numbers that would be impossible to review. Id. at 23-24. Moody distinguishes NetChoice’s members from companies that engage in expressive conduct like “newspaper[s], cable television provider[s], publishing house[s], bookstore[s], or movie theater[s]” by pointing out that these companies more carefully select the content they make available and do not rely on content generated by their users. Id. at 24. In sum, Moody concludes that Florida’s requirement that NetChoice’s members apply their moderation policies in a neutral manner are permissible regulations of their conduct in hosting users’ speech. Id. at 26.

NetChoice counters that Florida’s content-moderation restrictions are impermissible regulations of its members’ speech. Brief for Respondents, NetChoice, LLC, and the Computer & Communications Industry Association at 18. Specifically, NetChoice argues that the content-moderation laws restrict its members’ editorial decisions, which constitute speech. Id. at 18-19. NetChoice submits that the First Amendment protects editorial decisions because the choice to promote or make available certain information communicates a message, even if the promoter did not write the information itself. Id. at 19. NetChoice compares Florida’s content-moderation laws to the law struck down in Miami Herald Publishing Co. Id. at 20. NetChoice explains that the Court ruled that a law requiring newspapers to publish politicians’ rebuttals to their stories was unconstitutional because those kinds of editorial decisions constituted protected speech. Id. at 20. NetChoice asserts that protections extending to editorial decisions are not limited to press contexts, pointing to the Court’s past rejection of laws which would have required parade organizers to allow LGBTQ groups to march and utility companies to print third parties’ statements on their bills. Id. at 22.

Next, NetChoice contends that Moody’s common carrier argument is meritless because NetChoice members are not common carriers and regardless, the First Amendment still protects common carriers’ editorial decisions. Id. at 46-47. NetChoice emphasizes the editorial decisions its members make already, submitting that the Florida content-moderation laws are attempting to “convert them into common carriers.” Id. at 47. NetChoice points out that there were never common law accessibility requirements placed on entities that actively promoted their users’ speech. Id. It distinguishes its members’ services from telegraphs and telephones by pointing out that they actively promote and organize their users’ communications as opposed to the wholly passive role played by traditional communication utilities. Id. at 49. NetChoice also distinguishes Florida’s content-moderation laws from other common carrier laws by arguing that the law does not apply to all common carriers; it only applies to the largest carriers because of their perceived liberal political bias. Id. at 51.

TIERS OF SCRUTINY

Moody argues that if Florida’s laws “regulate expression,” they should only be subject to intermediate scrutiny, a standard that requires a law to further a “sufficiently important governmental interest” through means that are “unrelated to the suppression of free expression.” Brief for Petitioners, Moody et al. at 39. First, Moody contends that intermediate scrutiny applies because Florida’s content-moderation provisions do not limit what kind of content NetChoice’s members promote; they only require that moderation policies are applied identically across viewpoints. Id. at 39. Second, Moody submits that the thirty-day restriction on changing terms of service merely prevents NetChoice’s members from arbitrarily changing their rules to censor opinions with which they disagree. Id. at 40. Moody analogizes these provisions to laws that required cable companies “to carry local stations,” which the Supreme Court found to be content neutral and pursued an important governmental interest in “[seeking] to protect the speech of the NetChoice’s members’ users.” Id. Moody states that Florida is not seeking to suppress NetChoice’s members’ free expression, pointing to the fact that each of NetChoice’s members promote unique messages while Florida’s law applies uniformly to all of them. Id. at 41. Moody asserts that if strict scrutiny applied to these provisions, then it should apply to similar longstanding regulations of the Post Office, cable companies, broadcasters, and newspapers. Id. at 42-43. Moody concludes that Florida’s content-moderation laws pass intermediate scrutiny because the laws “assur[e] that the public has access to a multiplicity of information sources,” which is especially important given the large percentage of ideas shared on members’ sites. Id. at 43, 45. They are “reasonably tailored” because they only include platforms that could distort speech through censorship. Id.

In contrast, NetChoice argues that strict scrutiny applies to Florida’s content-moderation laws, a standard which requires laws to be “narrowly tailored to serve compelling state interests.” Brief for Respondents, NetChoice, LLC, and the Computer & Communications Industry Association at 27. NetChoice contends that strict scrutiny applies because the content-moderation laws are “content-based” restrictions on speech which regulate speech according to its message. Id. In support of this proposition, NetChoice points to cases where the Supreme Court held that laws requiring clinics to provide information or parades to allow marchers were content based because they changed the messaging those organizations offered. Id. at 28. NetChoice submits that Florida’s content-moderation laws are similar to these laws because they require its members to endorse and promote speech that express ideas with which they disagree. Id. In addition, NetChoice contends that the laws warrant strict scrutiny because they single out specific speakers—large social media companies, partly for their perceived liberal bias. Id. at 31-33. NetChoice posits that Florida’s content-moderation laws fail strict scrutiny because Florida does not attempt to argue the laws are “the least restrictive means of achieving a compelling state interest.” Id. at 35-36. Further, NetChoice says that the laws would fail intermediate scrutiny because they are not “narrowly tailored to serve a significant interest.” Id. at 36. NetChoice submits that the state’s interest in allowing people to hear different opinions is not significant under Supreme Court precedent. Id. Further, the state’s interest in allowing information to spread, NetChoice maintains, is only significant in contexts like cable or broadcasting, not the internet. Id. at 36-37. NetChoice concludes that the laws are not narrowly tailored because they both overregulate speech that falls outside the states’ interests and underregulate targeted speech by exempting some online platforms. Id. at 38.

INDIVIDUALIZED DISCLOSURE REQUIREMENT

Moody argues that Florida’s individualized disclosure law is permissible under the First Amendment. Brief for Petitioners, Moody et al. at 46. Moody contends that Zauderer applies, a Supreme Court case that allowed requiring disclosure of factual information when rules “are not ‘unduly burdensome” and “reasonably related to the State’s interest in preventing deception of consumers.” Id. Moody argues that the requirements are not unduly burdensome because the regulated companies have the technological capability to generate individual responses with little cost in time or money, pointing to their compliance with a similar European law. Id. at 48-49.

NetChoice counters that the individualized disclosure law is prohibited under the First Amendment. Brief for Respondents, NetChoice, LLC, and the Computer & Communications Industry Association at 39. NetChoice maintains that Zauderer should not apply because the individualized disclosure provision regulates speech on its content which warrants strict scrutiny and submits that the law fails Zauderer regardless. Id. at 39. NetChoice argues that the individualized disclosure rule unduly burdens its members’ editorial speech because they would have to spend so many resources to send those disclosures that they would likely have to make the decision not to moderate their users at all. Id. at 26, 39-40.