The slip opinion in Moody, Attorney General of Florida, et al. v. NetChoice, LLC, No. 22-277, decided July 1, 2024 together with NetChoice, LLC v. Paxton, Attorney General of Texas, No. 22-555, and reported at 603 U.S. 707 (2024). The case-tracking page is Moody v. NetChoice, LLC; this page records what the document itself says, including the four separate writings (Source: supremecourt.gov).
Lineup
Kagan, J., delivered the opinion of the Court, "in which ROBERTS, C. J., and SOTOMAYOR, KAVANAUGH, and BARRETT, JJ., joined in full, and in which JACKSON, J., joined as to Parts I, II and III–A." Barrett, J., filed a concurring opinion. Jackson, J., filed an opinion concurring in part and concurring in the judgment. Thomas, J., filed an opinion concurring in the judgment. Alito, J., filed an opinion concurring in the judgment, in which Thomas and Gorsuch, JJ., joined.
The document is styled the opinion of the Court throughout, not a plurality opinion. Five justices joined it in full; Jackson joined Parts I, II, and III–A, declining to join the later discussion of the Texas law's application to the platforms' main feeds. That later discussion therefore carries five votes, a majority of the nine-member Court. Alito, joined by Thomas and Gorsuch, characterizes it differently: "The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional. Everything else in the opinion of the Court is nonbinding dicta."
The holding as stated
"The judgments are vacated, and the cases are remanded, because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms."
The Court sets out the facial-challenge standard it applied: a plaintiff must show that "a substantial number of [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep," citing Americans for Prosperity Foundation v. Bonta, 594 U.S. 595, 615. The required sequence is to determine what the law covers, then to identify which applications violate the First Amendment and measure them against the rest — for content-moderation provisions, "whether there is an intrusion on protected editorial discretion" as to every covered platform or function; for individualized-explanation provisions, "whether the required disclosures unduly burden expression," under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651. The Court declines to perform those inquiries itself because it is "a court of review, not of first view."
The editorial-discretion principles
The Court draws three general points from Miami Herald Publishing Co. v. Tornillo, Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., Turner Broadcasting System, Inc. v. FCC, and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.:
- "[T]he First Amendment offers protection when an entity engaged in compiling and curating others' speech into an expressive product of its own is directed to accommodate messages it would prefer to exclude."
- That protection does not lapse because the compiler includes most items and excludes only a few — "[i]t 'is enough' for the compiler to exclude the handful of messages it most 'disfavor[s]'."
- "[T]he government cannot get its way just by asserting an interest in better balancing the marketplace of ideas."
Applying those principles, the Court states that "Texas is not likely to succeed in enforcing its law against the platforms' application of their content-moderation policies to their main feeds." It describes the mechanism it is protecting in algorithmic terms: prioritization "achieved through algorithms," selection and ranking "most often based on a user's expressed interests and past activities, but … also … other factors, including the platform's preferences," with platforms writing "algorithms to implement those standards."
On Texas's asserted interest, the Court finds it fails even intermediate scrutiny: "Texas's asserted interest relates to the suppression of free expression, and it is not valid, let alone substantial." The First Amendment achieves a diverse expressive realm "by preventing the government from 'tilt[ing] public debate in a preferred direction' … not by licensing the government to stop private actors from speaking as they wish."
Barrett, J., concurring
Barrett joins the Court's opinion in full and agrees that "the Eleventh Circuit's understanding of the First Amendment's protection of editorial discretion was generally correct; the Fifth Circuit's was not." She writes separately to argue that an as-applied challenge would have served NetChoice better, because "dealing with a broad swath of varied platforms and functions in a facial challenge strikes me as a daunting, if not impossible, task."
The concurrence raises the question the Court's opinion does not reach — whether algorithmic and AI-driven moderation is the exercise of a human expressive choice. Barrett distinguishes two cases. Where humans decide to remove a category of content and "create an algorithm to help them identify and delete that content, the First Amendment protects their exercise of editorial judgment — even if the algorithm does most of the deleting without a person in the loop," because the algorithm "would simply implement human beings' inherently expressive choice." But "what if a platform's algorithm just presents automatically to each user whatever the algorithm thinks the user will like … ? The First Amendment implications of the Florida and Texas laws might be different for that kind of algorithm."
She then extends the question to large language models directly: "And what about AI, which is rapidly evolving? What if a platform's owners hand the reins to an AI tool and ask it simply to remove 'hateful' content? If the AI relies on large language models to determine what is 'hateful' and should be removed, has a human being with First Amendment rights made an inherently expressive 'choice . . . not to propound a particular point of view'?" Her conclusion is conditional rather than resolved: "technology may attenuate the connection between content-moderation actions … and human beings' constitutionally protected right to 'decide for [themselves] the ideas and beliefs deserving of expression' … So the way platforms use this sort of technology might have constitutional significance."
Barrett raises a second unresolved variable: foreign ownership. Corporations possess First Amendment rights, but "foreign persons and corporations located abroad do not," so "a social-media platform's foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny." She asks whether it would matter "that the corporation employs Americans to develop and implement content-moderation algorithms if they do so at the direction of foreign executives."
Jackson, J., concurring in part and concurring in the judgment
Jackson agrees that the records do not permit evaluation of the facial challenges and that "the Eleventh Circuit at least fairly stated our First Amendment precedent, whereas the Fifth Circuit did not." Her disagreement is with the Court's decision to go further: "I would not go on to treat either like an as-applied challenge and preview our potential ruling on the merits," invoking Ashwander v. TVA restraint.
She states two boundary propositions and declines to go past them: "Not every potential action taken by a social media company will qualify as expression protected under the First Amendment. But not every hypothesized regulation of such a company's operations will necessarily be able to withstand the force of the First Amendment's protections either."
Her methodological instruction is the most granular in the case: "The question is not whether an entire category of corporations (like social media companies) or a particular entity (like Facebook) is generally engaged in expression. Nor is it enough to say that a given activity (say, content moderation) for a particular service (the News Feed, for example) seems roughly analogous to a more familiar example from our precedent." Courts "must make sure they carefully parse not only what entities are regulated, but how the regulated activities actually function" before deciding whether the activity is expression.
Thomas, J., concurring in the judgment
Thomas agrees with vacatur and remand but not with the Court's merits discussion, which he calls "unnecessary to its holding" and faults as committing the same error the Court attributes to the circuits: "Out of the sea of 'variegated and complex' functions that platforms perform, the Court plucks out two (Facebook's News Feed and YouTube's homepage), and declares that they may be protected by the First Amendment," on a record the Court itself describes as "incomplete" and "underdeveloped."
He raises a jurisdictional objection to facial challenges as a class: Article III "permits federal courts to exercise judicial power only over 'Cases' and 'Controversies,'" so "federal courts can decide whether a statute is constitutional only as applied to the parties before them — they lack authority to deem a statute 'facially' unconstitutional." He also states that the Court should reconsider Zauderer and its progeny, while accepting its application at this stage because the trade associations did not contest it below. He joins Alito's opinion in full.
Alito, J., concurring in the judgment, joined by Thomas and Gorsuch
Alito agrees with "the bottom line of the majority's central holding" and treats everything beyond it as dicta. He argues the record cannot support the merits discussion: "we do not know how the platforms 'moderate' their users' content, much less whether they do so in an inherently expressive way under the First Amendment."
His central objection goes to the analogy the Court's opinion rests on. He writes that the majority "unreflectively assumes the truth of NetChoice's unsupported assertion that social-media platforms — which use secret algorithms to review and moderate an almost unimaginable quantity of data today — are just as expressive as the newspaper editors who marked up typescripts in blue pencil 50 years ago." He allows that the as-applied questions "are important, and we may have to decide them before too long," while maintaining that these cases do not present the occasion.
Provenance
Retrieved August 21, 2026 from the Supreme Court's own slip-opinion server (HTTP 200); the PDF is 96 pages and its document metadata carries the title "22-277 Moody v. NetChoice, LLC (07/01/2024)." Star pagination is not preserved in the transcription, so slip-opinion page numbers should not be cited from the raw file; cite by part or by U.S. Reports pagination from an official reporter. The slip opinion carries the standard notice that it "is subject to formal revision before publication in the United States Reports."
Relationships
- related: Moody v. NetChoice, LLC — the case-tracking page this opinion underlies.
- supports: Algorithmic Speech Doctrine — the editorial-discretion holding, and Barrett's and Alito's separate treatments of whether algorithmic and AI-driven curation carries the same protection.
- related: Section 230 (47 U.S.C. § 230), NetChoice, Eric Goldman.
- related: xAI LLC v. Weiser (challenging the Colorado AI Act), Minnesota HF 1606 (Nudification Technology Prohibition), State Deepfake Statutes (MN, WA, TX, CA) — downstream applications of the editorial-control argument.
- related: NetChoice v. Bonta (CAADCA litigation) — a distinct case applying the same facial-challenge method in the Ninth Circuit.