Rules
Section 230 and State Social Media Laws: Who Decides What Platforms Remove?
How Section 230, the Florida and Texas social media laws and the Supreme Court's Moody v. NetChoice decision divide the power to remove or keep user posts.
What to take away
- Section 230 of the Communications Decency Act is a liability rule. It says a platform is not treated as the publisher of what its users post and is not liable for good-faith efforts to remove objectionable material.
- Florida's S.B. 7072 and Texas's H.B. 20 tried to limit how large platforms remove, label or demote user posts. Both laws were challenged on First Amendment grounds.
- In Moody v. NetChoice, decided July 1, 2024, the Supreme Court vacated both appeals court judgments and sent the cases back, because neither court had done the full analysis a facial challenge requires.
- The Court nonetheless explained that curating a feed can be protected editorial activity, and it criticized the Fifth Circuit's view that moderation is not speech.
- Which rules apply to a given removal depends on the platform, the function involved and the stage of the litigation. Those questions are still being worked out.
Two separate questions
People often treat Section 230 as the thing that lets platforms remove posts. That is only half the story. Two different legal questions are involved:
- Liability.Can someone sue the platform over what a user posted, or over the platform's decision to take something down? That is the Section 230 question.
- Authority.Can a state tell a platform what it must keep up or may not demote? That is the First Amendment and state-law question the Supreme Court addressed in Moody v. NetChoice.
Keeping the two apart explains most of the confusion about "who decides."
What Section 230 says
The statute is 47 U.S.C. § 230. Subsection (c)(1) says that no provider or user of an interactive computer service shall be treated as the publisher or speaker of information provided by another information content provider. Subsection (c)(2)(A) says no provider or user shall be held liable for any action voluntarily taken in good faith to restrict access to material the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not the material is constitutionally protected.
The statute also has limits. Under subsection (e), it does not impair enforcement of federal criminal statutes, does not limit or expand intellectual property law and does not limit the Electronic Communications Privacy Act. Subsection (e)(5) preserves certain sex trafficking claims. Subsection (e)(3) deals with states: a state may enforce a state law consistent with Section 230, but no cause of action may be brought and no liability imposed under state or local law that is inconsistent with it.
For the history of how courts have read the statute, see what Section 230 protected US platforms.
What the Florida and Texas laws required
The Supreme Court's opinion describes both laws, which were enacted in 2021.
Florida (S.B. 7072, Fla. Stat. § 501.2041). The law covers social media platforms with annual gross revenue over $100 million or more than 100 million monthly active users. It restricts censoring, deplatforming or shadow banning a journalistic enterprise based on the content of its publication, bars applying post-prioritization or shadow-banning algorithms to a qualified candidate's content, and requires platforms to apply their standards consistently. A platform must send a written notice within seven days of censoring a user's content, with a thorough rationale and an explanation of how it became aware of the content. Users may sue for violations of the consistency and notice duties and recover up to $100,000 in statutory damages per proven claim, plus other relief. The statute says it is enforced only to the extent consistent with federal law, including Section 230.
Texas (H.B. 20). The law covers social media platforms with more than 50 million monthly users in the United States, and excludes services such as internet service providers, email providers and sites that consist primarily of content the provider preselected. Its central provision prevents platforms from censoring a user or a user's expression based on viewpoint, or based on the user's geographic location within Texas. Censoring means acting to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression. The law has exceptions, including content that federal law specifically authorizes a platform to censor. It also requires a platform to notify the user and explain the reason when content is removed, and to handle an appeal within 14 days.
Both laws also contain individualized-explanation duties, requiring platforms to tell users why a post was removed or altered.
What Moody v. NetChoice decided
Argued on February 26, 2024 and decided on July 1, 2024, the case combined challenges to the two laws brought by NetChoice and the Computer and Communications Industry Association, trade groups whose members include Facebook and YouTube. They brought facial First Amendment challenges, which means they argued the laws were unconstitutional in all or most applications.
The Eleventh Circuit had upheld the injunction against Florida's law. The Fifth Circuit had reversed the injunction against Texas's law, reasoning that content moderation is not speech at all.
The Supreme Court did not strike down either law. It vacated both judgments and remanded. The syllabus explains why: facial challenges are hard to win, because the challenger must show that a substantial number of the law's applications are unconstitutional compared with its plainly legitimate sweep. The lower courts had focused on feeds such as Facebook's News Feed and YouTube's homepage and had not examined the full range of services and functions the laws cover, such as direct messaging. Before a court can decide, it must determine what each law covers and then ask, for each covered platform or function, whether there is an intrusion on protected editorial discretion.
What the Court said about editorial discretion
Although it sent the cases back, the Court said more about how the First Amendment applies, especially to correct the Fifth Circuit. It stated that ordering a party to provide a forum for someone else's views implicates the First Amendment if, though only if, the regulated party is engaged in its own expressive activity that the mandated access would alter or disrupt. It reviewed earlier cases involving newspapers, utilities, cable operators and parade organizers.
Applying those principles, the Court said that major platforms curate their feeds by combining many voices into a distinctive expressive offering. It also said Texas was not likely to succeed in enforcing its law against the platforms' application of content-moderation policies to their main feeds. The Court described the Fifth Circuit's decision as resting on a serious misunderstanding of First Amendment precedent.
These statements guide the lower courts but are not a final ruling on every application of either law. The Court left open how the laws apply to other services and functions.
So who decides what is removed?
A practical summary, with limits:
- The platform decides, in most cases involving its main feed. Section 230 protects it from liability for good-faith removals, and the First Amendment protects its editorial choices about how it presents feeds.
- States can regulate, but only within First Amendment limits, and not in a way that conflicts with Section 230. How far they can go for services other than feeds was left open.
- Courts decide the boundary, case by case, on the remand record. Anyone relying on a state law's notice or appeal rights should check the current status of the Florida and Texas litigation, because this article describes the laws and the 2024 decision, not later rulings.
- Federal law still applieswhere Section 230 has exceptions, such as federal criminal law and intellectual property.
For a broader look at the rules platforms follow, read US platform rules and what stays online and what the FCC regulates.
Common questions
Did the Supreme Court say Florida and Texas can force platforms to keep posts up?
No. It vacated the lower court rulings and sent the cases back. It also said that a state interest in correcting the mix of views does not justify overriding a platform's editorial choices in its main feeds, in the context of those cases.
Does Section 230 let platforms remove anything they want?
Section 230(c)(2)(A) protects voluntary, good-faith actions to restrict material the provider considers objectionable. It is a protection from liability, and it does not itself settle whether a state law can require anything of a platform.
Do the Florida and Texas laws still apply?
The Supreme Court did not strike them down, but both judgments were vacated and returned to the lower courts. Check the current status in the courts handling the remand before relying on any provision.
Can I sue over a removal?
Florida's statute allows users to sue for violations of its consistency and notice duties, with up to $100,000 in statutory damages per proven claim. Whether that provision can be enforced against a particular platform function is part of what the remand decides. Take legal advice for a specific case.
