NetChoice

NetChoice is a trade association of online businesses that advocates for free expression and free enterprise on the internet. It currently has six active First Amendment lawsuits over state-level internet regulations, including NetChoice v. Paxton, Moody v. NetChoice, NetChoice v. Bonta and NetChoice v. Yost.

Membership

NetChoice's members include Amazon, Google, Lyft, Meta, Nextdoor, PayPal, Snap, TikTok, Verisign, Waymo, and X.

Lawsuits

Moody v. NetChoice

Main article: Moody v. NetChoice, LLC

In May 2021, Florida passed SB 7072, a bill to ban social media companies from "deplatforming" users who are political candidates or "journalistic enterprises," among other things. The bill contained an exemption for companies that operated a theme park or entertainment complex in Florida. 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.

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, finding that "balancing the exchange of ideas among private speakers is not a legitimate governmental interest" and that social media companies' content moderation is First Amendment-protected editorial discretion. The Eleventh Circuit upheld most of the district court's injunction in May 2022. In September 2023, the Supreme Court granted certiorari of Moody and its companion case, NetChoice v. Paxton. The cases were heard together on February 26, 2024.

NetChoice v. Paxton

Main article: Moody v. NetChoice, LLC

In September 2021, Texas passed House Bill 20, a measure to ban popular social media services from moderating content based on "viewpoint" and from adding addenda, like fact-checks, to their users’ posts, among other things.

NetChoice and CCIA sued Ken Paxton, the Attorney General of Texas, in federal court to block the law's implementation. On December 1, 2021, the federal district court granted a preliminary injunction enjoining the law's enforcement. The court ruled that HB 20 was unconstitutional because content moderation is First Amendment-protected editorial discretion. Texas appealed the district court's decision to grant an injunction, and in May 2022, a panel of the Fifth Circuit Court of Appeals issued a one-sentence order for Texas, allowing the law to take effect.

Two days later, 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. On May 31, 2022, the Supreme Court agreed, vacating the Fifth Circuit's stay by a 5–4 vote to allow the injunction to take effect once more. Justices Alito, Thomas, and Gorsuch dissented. Justice Kagan voted to deny the stay as well, but did not write to explain her decision.

On September 16, 2022, a panel of the Fifth Circuit ruled that the district court erred in issuing its injunction, saying that the First Amendment does not protect social media companies' editorial discretion over what user generated content to publish. The Fifth Circuit's ruling created a circuit split with the Eleventh Circuit which, in May 2022, largely upheld an injunction against a similar law in NetChoice v. Moody.

In September 2023, the Supreme Court granted certiorari of Paxton and NetChoice v. Moody. The cases were heard together on February 26, 2024.

NetChoice v. Yost

On July 5, 2023, Ohio governor Mike DeWine signed HB 33 into law which included the Social Media Parental Notification Act as a part of the Ohio 2024 to 2025 fiscal year budget. This law requires that children and teens under 16 to get parental consent on a platform that allows content to be posted a on a public or semi-public profile. The law was originally set to go into effect on January 15, 2024, ten days before the law was set to go in effect. NetChoice filed a lawsuit against the State of Ohio claiming that the law was violating constitutional rights and the First Amendment and that it would pose a risk to internet privacy, safety and security. On January 8, 2024, an Ohio judge granted a temporary restraining order that stopped the law from going into effect on January 15. The judge stated that "Foreclosing minors under sixteen from accessing all content on websites that the Act purports to cover, absent affirmative parental consent, is a breathtakingly blunt instrument for reducing social media’s harm to children.” A hearing was held on February 7. The law remained suspended.

Controversy

In April 2024, The Intercept revealed that NetChoice had made donations in excess of $800,000 to organizations that went on to file amicus briefs in support of its arguments in multiple lawsuits, including a $450,000 contribution in 2022 to TechFreedom, a nonprofit think tank that later filed an amicus brief in support of NetChoice's argument in NetChoice v. Paxton.