Moody v. NetChoice, LLC

In February 2021, Florida governor Ron DeSantis proposed the idea of a state bill that would prevent interactive service providers from deplatforming running candidates for office, citing the removal of the Parler app from Google and Apple's app stores as an example of this issue.[5] This led to the creation of Florida State Bill (SB) 7072, which was passed by the state legislature in May 2021. The final bill would fine these providers if they left a ban on a running candidate for over 60 days, and similarly application to "journalistic enterprises" that operate in Florida and have with either over 100,000 monthly users or 50,000 subscribers. The bill contained an exemption for providers which were also part of a company that operated a theme park or entertainment complex in Florida, which was taken to be a specific carve-out for Disney World.[6] This exemption was removed later after DeSantis objected to The Walt Disney Company's challenge to the Florida Parental Rights in Education Act, also known as the "Don't Say Gay" law.[7]

NetChoice and the Computer & Communications Industry Association (CCIA) challenged the law shortly after it was passed. Judge Robert Hinkle of the United States District Court for the Northern District of Florida granted a preliminary injunction on most of SB 7072 in June 2021, stating that "Balancing the exchange of ideas among private speakers is not a legitimate governmental interest."[8] The Eleventh Circuit upheld most of the injunction in May 2022, dismissing the part of the injunction related to the theme park clause since by that point, the exemption had been removed.[9]

In September 2021, Texas passed Texas House Bill 20, a law that would govern the behavior, particularly with regard to content moderation, of social media companies with more than 50 million users. Among other provisions, the law forbade platforms from "censoring" (defined as essentially any mechanism by which content is removed or hidden) user content based on viewpoint, barred email providers from impeding the transmission of emails under most circumstances (except where the content is obscene, illegal, or contains malicious code), and required platforms provide detailed transparency reports and information about their content moderation policies.[10]

After the enactment of the bill, NetChoice and CCIA sued Ken Paxton, the Attorney General of Texas, in federal court to block its implementation. On December 1, 2021, the federal district court granted a preliminary injunction enjoining the law's enforcement. The court ruled that the law was unconstitutional because editorial discretion, such as the moderation actions the law forbade, is protected by the First Amendment.[10]

Texas appealed the district court's decision to grant an injunction, and in May of 2022, a panel of the Fifth Circuit Court of Appeals issued a one-sentence, unexplained order granting a stay of the injunction and allowing the law to take effect.[11][12]

Two days after the appeals court issued its stay, NetChoice and CCIA petitioned the Supreme Court to vacate the stay and reinstate the district court's injunction. They argued that the Fifth Circuit's unreasoned order deprived them of "careful review and a meaningful decision" and that reinstating the district court's stay would preserve the status quo while the law's constitutionality continued to be litigated.[13] On May 31, 2022, the Supreme Court vacated the Fifth Circuit's stay by a 5–4 vote, allowing the injunction to take effect once more. Justices Alito, Thomas, and Gorsuch dissented, writing that H.B. 20 was "novel" and that it was not clear how the court's precedent should apply in this case and that the Supreme Court should therefore not have intervened. Justice Kagan voted to deny the stay as well, but did not write to explain her decision.[14][15]

On September 16, 2022, a panel of the Fifth Circuit ruled that the district court erred in issuing its injunction, saying that "[the platforms'] censorship is not speech", and remanded the case to the district court for further proceedings.[16] The Fifth Circuit's ruling creates a circuit split with the Eleventh Circuit which, in May of 2022, largely upheld an injunction against a similar law enacted by Florida (and challenged by NetChoice).[17]