Constitutional Limitations on State Social Media Regulations

The regulation of social media platforms has emerged as one of the most contentious First Amendment issues of the current era. Large social media companies exercise enormous influence over public discourse through their content moderation decisions, which determine what speech is amplified, demoted, or removed from their platforms. Concerns about perceived political bias in content moderation have led several states, including Texas and Florida, to enact laws restricting platforms' ability to moderate content based on viewpoint.

Texas HB 20, enacted in 2021, prohibits social media platforms with more than 50 million monthly active users from censoring, deplatforming, or shadow-banning users based on the viewpoint expressed by the user or another person. The law also imposes transparency and disclosure requirements, mandating that covered platforms publish their content moderation policies, provide notice and an opportunity to appeal before removing content, and file regular reports with the Attorney General. The Supreme Court addressed both the Texas and Florida social media laws in Moody v. NetChoice (2024), but remanded the cases for further analysis under the facial challenge framework, leaving many questions about the constitutionality of specific provisions unresolved.

The central First Amendment question is whether social media platforms engage in protected editorial discretion when they moderate user-generated content. The Supreme Court's decision in Moody v. NetChoice acknowledged that platforms exercise editorial judgment in curating and organizing content, analogizing this activity to the editorial decisions of newspapers and parade organizers recognized as protected in Miami Herald Publishing Co. v. Tornillo (1974) and Hurley v. Irish-American Gay Group of Boston (1995). However, the Court's analysis was conducted at a high level of generality and acknowledged that the challenged laws applied to a wide range of platform functions, not all of which necessarily involve protected editorial discretion.

The opinion analyzes the distinction between different types of platform activities. Content curation and recommendation algorithms, which determine which posts users see in their feeds, involve editorial judgments about the relative value and relevance of different content and are likely protected by the First Amendment. Decisions to remove or label specific user posts involve the platform's judgment about the appropriateness of the content and may also constitute protected editorial decisions. However, functions that are more akin to neutral conduits, such as direct messaging, marketplace listings, and event calendars, may involve less editorial discretion and may be more susceptible to regulation.

The transparency and disclosure provisions of HB 20 are analyzed separately from the content moderation restrictions. The opinion concludes that requirements to publish content moderation policies, provide notice of content removal, and offer appeal mechanisms are more likely to survive First Amendment scrutiny because they do not restrict what platforms say or how they exercise editorial judgment but rather require them to be transparent about their practices. These requirements are analogous to disclosure mandates in other contexts that have been upheld under the commercial speech doctrine of Zauderer v. Office of Disciplinary Counsel (1985), which permits requirements that are reasonably related to the government's interest in preventing deception.

The First Amendment imposes significant limitations on state efforts to restrict social media platforms' content moderation decisions. Provisions that prohibit viewpoint-based content moderation face the highest constitutional hurdles and are unlikely to survive strict scrutiny. Transparency and disclosure requirements, by contrast, are more likely to be upheld as permissible regulations of commercial conduct that do not restrict editorial discretion. The state should focus its regulatory efforts on transparency, notice, and appeal requirements while awaiting further judicial guidance on the boundaries of permissible platform regulation.

This opinion guides the Texas Attorney General's Office in its enforcement of HB 20 and in any further litigation over the law's constitutionality. Social media platforms should implement robust transparency practices, including published content moderation policies, user notification systems, and appeal mechanisms, as these requirements are the most legally defensible components of state social media regulation. First Amendment attorneys should monitor the continuing development of the law in this area, as the Supreme Court's remand in Moody v. NetChoice will produce additional lower court decisions that clarify the scope of platforms' First Amendment protections.