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Yes—but not as a blanket ruling. In Moody v. NetChoice, decided July 1, 2024, the Supreme Court said that selecting and arranging third-party posts in a curated feed can be expressive activity protected by the First Amendment. It did not strike down Florida’s and Texas’s platform laws outright. Instead, it vacated lower-court judgments and sent the challenges back for a more complete analysis of which services and functions the laws cover.
What did the Supreme Court decide?
The Court considered challenges to Florida and Texas laws regulating large online platforms’ content moderation and, in some circumstances, requiring explanations to users. It vacated the Fifth and Eleventh Circuit judgments and remanded both cases because the lower courts had not adequately assessed the laws’ full reach. The decision is the Court’s July 1, 2024 opinion in Moody v. NetChoice, LLC.
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The central First Amendment guidance is significant: a platform’s decisions about which third-party speech to include or exclude from a curated feed, and how to organize and present what remains, may themselves be expressive. Justice Elena Kagan wrote for the Court: “Deciding on the third-party speech that will be included in or excluded from a compilation—and then organizing and presenting the included items—is expressive activity of its own.”
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Repair Windows errors before they cause bigger problemsFix Now →Scan for outdated or missing drivers - takes under a minuteDriver Scan →That principle can make government orders to change a curated feed constitutionally difficult. But the ruling does not make every activity of a social-media company expressive, nor does it exempt platforms from regulation across the board.
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Why can a platform’s feed count as expression?
A curated feed is not necessarily a neutral container. A service may select, exclude, rank, and arrange other people’s speech. Those choices can shape the product users see and convey something through the resulting compilation. The Court drew on established principles protecting editorial judgment, including the concern that government cannot force an expressive actor to include material it chose to leave out.
As Kagan put it: “When the government interferes with such editorial choices—say, by ordering the excluded to be included—it alters the content of the compilation.” The point is about the editorial function at issue, not a categorical claim that every feature or service offered by a large platform has First Amendment protection.
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Why didn’t the Court simply invalidate the laws?
Both challenges were facial challenges: the plaintiffs attacked the laws broadly rather than limiting the case to a particular enforcement action. Under the standard described by the Court, a plaintiff must show that a substantial number of a law’s applications are unconstitutional in relation to its plainly legitimate sweep.
The lower courts had concentrated largely on familiar products such as Facebook’s News Feed and YouTube’s homepage. The Supreme Court said that was not enough to evaluate statutes that might reach a wider range of actors, services, and functions. It sent the cases back so the lower courts could assess the laws as a whole and apply the constitutional test to their actual scope.
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What must the lower courts examine on remand?
- Determine coverage. Identify which entities and functions each law reaches, rather than assuming the analysis is limited to a familiar social-media feed.
- Assess each application. Decide which covered functions involve protected editorial discretion and whether the law’s requirements intrude on that discretion.
- Evaluate disclosure mandates. For requirements to provide individualized explanations, consider whether compelled disclosures unduly burden expression.
- Complete the facial-challenge analysis. Compare any unconstitutional applications with the statute’s plainly legitimate sweep before deciding whether a broad facial remedy is warranted.
The result may depend on the function being regulated and how the law applies to it. The Court’s framework therefore supports protection for some forms of feed curation without resolving every provision or application of either statute.
How is Moody different from Murthy v. Missouri?
Moody addressed state laws regulating platform content moderation and related disclosures. Murthy v. Missouri concerned claims that federal officials’ communications with platforms violated the First Amendment. In Murthy, the Supreme Court rejected the plaintiffs’ case for lack of standing; it did not issue a broad merits ruling declaring such government communications categorically constitutional or unconstitutional. The cases were separate, and Moody did not decide the government-pressure question.
The procedural record for Murthy is available on the Supreme Court docket, No. 23-411.
What the ruling means for users and platforms
For users, the decision recognizes that choices about what appears in a curated feed can receive constitutional protection; it does not guarantee that a particular post will remain online or appear prominently. For platforms, it provides a framework for challenging government efforts to dictate editorial choices, while leaving the reach and constitutionality of the Florida and Texas provisions for further lower-court analysis.
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