The First Amendment and Digital Platforms: Insights from the Moody Decision

Aaron Mackey | Electronic Frontier Foundation

Aaron litigates free speech, anonymity, privacy, government surveillance and transparency cases. Before joining EFF in 2015, Aaron was in Washington, D.C. where he worked on speech, privacy, and freedom of information issues at the Reporters Committee for Freedom of the Press and the Institute for Public Representation at Georgetown Law.

Aaron graduated from Berkeley Law, where he worked for EFF while a student in the Samuelson Law, Technology & Public Policy Clinic. He also holds an LLM from Georgetown Law. Prior to law school, Aaron was a journalist at the Arizona Daily Star in Tucson, Arizona. He received his undergraduate degree in journalism and English from the University of Arizona, where he met his amazing wife, Ashley. They have two children.

Molly Buckley | Electronic Frontier Foundation

Molly Buckley is a Legal Fellow on EFF’s civil liberties team, where she works on free speech, privacy, censorship, and surveillance issues. During law school, Molly worked as an intern at EFF and at the Brennan Center for Justice’s Liberty and National Security program, and on disability and workers’ rights issues as a student attorney in UT’s Advanced Civil Rights and Transnational Workers’ Rights Clinics.

She was also Vice President of the Human Rights Law Society and a National Security Law Fellow with the Strauss Center for International Security and Law. Previously, Molly was a paralegal in the ACLU’s National Security Project, an elected bargaining representative of the ACLU Support Staff Union, and program assistant to the Social Science Research Council’s Anxieties of Democracy program. Molly holds a J.D. from the University of Texas School of Law and a B.A. in media studies and political science from Vassar College.

I. Case background, state efforts to mandate hosting of certain online speech | 1:00pm – 1:15pm

II. Supreme Court’s key holdings | 1:15pm – 1:30pm

• Online services have First Amendment right to moderate content, just as newspapers, parades, and art galleries enjoy right to decide what speech they print, exhibit, display
• That services have a First Amendment right to moderate user speech does not mean that they are beyond state regulation
• Cannot rule on the merits of plaintiffs’ facial challenges to the Texas, Florida law, and remands for further proceedings

III. Digital editorial freedom | 1:30pm – 1:45pm

• The policies and choices online services make regarding what user generated content is featured in feeds and how it is featured constituted protected editorial expression under the First Amendment
• This is a straightforward application of precedent recognizing the First Amendment rights of newspapers, parade organizers, and cable companies to decide what expression they will publish, feature, or distribute

IV. States can regulate social media | 1:45pm – 2:00pm

• Opinion is careful to note that while state laws at issue implicate services’ First Amendment rights, not all aspects of services are expressive, and states have wide leeway to regulate conduct and other aspects of services’ business.
  • Including competition laws and consumer privacy

Break | 2:00pm – 2:10pm

V. Core holding is narrow, court only applies binding First Amendment analysis to services’ rights to compile and curate feeds of user-generated speech | 2:10pm – 2:25pm

VI. Court leaves open questions for future cases/regulations | 2:25pm – 2:40pm

• Are 100% automated feeds protected expression?
• Does the First Amendment apply to delivery/filtering of direct messages, scheduling an Uber, or deciding which users to offer email accounts?
• What if moderation is done by wholly automated means (lacking any human/corporate expression)?

VII. Cases proceed below, both cases are back (or will be soon) before district courts to conduct facial analysis required by Supreme Court | 2:40pm – 2:55pm

VIII. What’s next? | 2:55pm – 3:10pm

• States continue to enact laws that implicate First Amendment protected expression online
  • Supreme Court to hear challenge to Texas law requiring sites with adult content to verify the ages of all users
  • Multiple states have passed laws prohibiting minors from accessing social media without parental consent