FICTION
Moody v. NetChoice, LLC
603 U.S. 707 (2024) · 2024
The platform's feed is the platform's speech.
“The principle does not change because the curated compilation has gone from the physical to the virtual world.”
The Ruling
The Supreme Court vacated and remanded First Amendment challenges to Florida (S.B. 7072) and Texas (H.B. 20) statutes restricting how large social-media platforms moderate user content. Justice Kagan's majority opinion held that the lower courts had not properly conducted the facial-overbreadth analysis, but reaffirmed that a platform's curation of a feed — selecting, ordering, and excluding posts — is itself protected expressive activity under the First Amendment.
The Personhood Argument Not Made
Moody crystallizes platform personhood at the level of the algorithm itself. The Court treats the recommendation feed not as a neutral conduit but as the platform's own speech, entitled to editorial protection comparable to that of a newspaper. The user posting into the feed is recharacterized as raw material for the platform's expression. In Varoufakis's terms, this is the lord's right to compose the manor: the serf may speak, but the speech becomes a constitutive element of the lord's protected discourse, and the lord's curatorial sovereignty is constitutionalized.
The Execution Gap Created
Florida's S.B. 7072 was enacted in May 2021 in response to platform de-platforming decisions; Texas's H.B. 20 followed in September 2021. Between them they purported to govern moderation of audiences exceeding 100 million U.S. users on the largest platforms. After Moody, those statutes are effectively unenforceable in their core operations, leaving moderation discretion entirely with the platforms. Users continue to face suspension, shadow-banning, and demonetization with no constitutionally cognizable remedy against the moderating entity.
Primary sources & research
Related cases
Part of The Personhood Prism, the companion to The Execution Gap by Thomas William Hornig. See all personhood cases →