Social media content moderation by technology platforms was one of the “hot” legal topics in 2023-2024. Three States — California, Texas, and Florida — passed different statutes to either require more content moderation (California) or to limit such moderation (Texas and Florida). All the statutes, in one way or another, demanded more transparency and information from the technology platforms about their methods of content moderation and the end results. Politically, left-leaning California favored more moderation to prevent the spread of mis- and disinformation, and the right-leaning States opposed content moderation as a form of censorship of free speech.

Legally, the Texas and Florida statutes reached the U.S. Supreme Court first. In NetChoice, LLC v. Moody the Supreme Court did not reach the specific legal merits of the cases, but DID hold that technology platforms were engaged in “speech” when they engaged in social media content moderation. Shortly after the NetChoice opinion was issued, the California statute reached the Ninth Circuit Court of Appeal in X Corp v Bonta, Case No. 24-271 (9th Cir. 2024). In that case, the judges held that the California statute imposed improper burdens and restrictions on free speech activity. As a result, most of the California statute was deemed unconstitutional.

The combination of these two court decisions has clearly dampened any enthusiasm from lawmakers for passing statutes that require or limit social media content moderation. As far as we can tell, there are no current efforts to enact similar laws. The Texas and Florida cases are still pending. However, the cases are not receiving much notice or attention. The Texas case is scheduled for trial in the summer of 2025.

In addition to the legal actions, several other things have dampened enthusiasm. The first is, of course, the election results. Among other things, the election results have given Elon Musk and his X platform (formerly Twitter) a heightened prominence making it more difficult to make a successful challenge to X’s content moderation policies. Interestingly, the legal challenges to X’s reduced moderation are coming internationally from Brazil and the European Union, for example. The election results have also caused a pause in the sale and/or banning of TikTok which has been the focus of ire from the political left for insufficient content moderation. Further, another large social media platform — Facebook — has pulled back on its content moderation as a result of the election. Together, a ripple effect has been created where there is significantly less content moderation than even a couple of years ago.

That being said, the issue remains important. However, it seems that the content moderation debate has moved away from the legal space and back into the “persuasion space,” where the arguments are being directed at the technology platforms.

Section 230 and the Legal Foundation for Platform Moderation Decisions

Any analysis of social media content moderation law must begin with Section 230 of the Communications Decency Act (47 U.S.C. § 230), which remains the foundational federal statute governing platform liability for user-generated content. Section 230(c)(1) provides that no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Section 230(c)(2) further provides that platforms are not liable for voluntarily taking action in good faith to restrict access to objectionable content.

These two provisions together created the legal architecture that allowed modern social media to develop: platforms are neither liable for hosting third-party content nor liable for removing it. The result is broad discretion over moderation decisions — which is precisely what the Texas and Florida statutes challenged, and why both encountered First Amendment problems.

The NetChoice Cases: What the Supreme Court Actually Held

In Moody v. NetChoice, LLC, 603 U.S. ___ (2024), the Supreme Court vacated lower court rulings on the Texas and Florida statutes and remanded for further analysis, but made a critical legal finding: content moderation — the process by which platforms curate, arrange, amplify, and restrict content — constitutes protected speech activity under the First Amendment. The Court analogized platform content moderation to the editorial decisions of a newspaper or parade organizer.

This holding creates significant constitutional headwinds for any statute that requires platforms to carry content they would otherwise remove, mandates particular moderation approaches, or compels disclosure of internal moderation policies in ways that effectively force platforms to justify their editorial decisions. The Texas law (H.B. 20), which prohibited large platforms from censoring viewpoints, and the Florida law (S.B. 7072), which imposed “must-carry” obligations for political candidates and journalistic enterprises, both impose precisely these kinds of requirements.

The International Enforcement Landscape

While U.S. content moderation litigation has largely stalled pending resolution of the Texas and Florida cases, international enforcement has accelerated. The European Union’s Digital Services Act (DSA), which became fully applicable in February 2024, imposes mandatory content moderation obligations, transparency requirements, and algorithmic accountability measures on “very large online platforms” (VLOPs) with more than 45 million monthly active users in the EU. Non-compliance can result in fines of up to 6% of global annual revenue.

Brazil’s ongoing legal battle with X Corp. over its refusal to comply with court orders to remove accounts highlights how non-U.S. enforcement operates without First Amendment constraints. The EU’s investigations of X, Meta, and TikTok under the DSA involve mandatory risk assessments, independent audits, and the potential requirement to provide researchers with access to algorithmic systems.

What This Means for Businesses and Individuals

The current legal landscape has several practical implications:

• Account suspensions and content removal. Under current U.S. law, social media platforms have near-total discretion to remove content and suspend accounts. Section 230 and the First Amendment both insulate these decisions from legal challenge in most circumstances. Businesses that rely on social media accounts for revenue should maintain off-platform customer communication channels — email lists, owned websites — as a hedge against account suspension.
• Defamation and content moderation. Section 230(c)(1) also immunizes platforms from defamation liability for content posted by users. Individuals defamed on social media platforms generally cannot sue the platform — they must sue the poster. Identifying anonymous posters requires legal process, including subpoenas to the platform for user identity information.
• EU operations. Businesses with EU users must understand the DSA’s obligations, particularly if they operate platforms within DSA scope, and should monitor EU Commission enforcement actions for indications of how DSA compliance will be assessed in practice.

Content moderation law will continue to evolve as the Texas and Florida cases work through the courts and as federal legislation on platform accountability resurfaces in Congress. Contact the Internet Law attorneys at Revision Legal or visit our internet law practice page to discuss your platform-related legal questions.

Contact the Internet Attorneys at Revision Legal

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