Report from MediaPost
In Brief – Missouri Attorney General Andrew Bailey announced a rule under Missouri’s Merchandising Practices Act that bans social media platforms from setting their own content moderation standards. The rule states that it is an unfair, deceptive, or otherwise unlawful practice for social media platforms to deny users the ability to choose an independent content moderator. Platforms must now provide a choice screen for content moderation upon account activation and at regular intervals, must not favor their own moderation tools, and must allow full interoperability for outside moderators. Bailey argues that the rule is consistent with the Supreme Court’s guidance from Moody v. NetChoice that sent state laws regulating social media content moderation in Texas and Florida back to lower courts for additional scrutiny. The court’s majority in that case said that state laws requiring social media platforms to have balanced content moderation rules likely violate the First Amendment but that other bases for restrictions on platform speech, such as under competition law, would be less clear cut.
Context – Last summer, the US Supreme Court decided a pair of cases involving social media content moderation, neither undermining current social media practices nor definitively rejecting challenges to the status quo. In Moody, all nine justices agreed to send challenges to Texas and Florida laws intending to stop anti-conservative viewpoint discrimination by social media companies back to lower courts for more thorough review of how the laws impact digital platforms that are not social media. While five justices agreed that traditional social media content moderation was protected speech, some argue that the circular ruling was quite limited in applying the First Amendment and a few judges have used it to justify more social media regulation. The second ruling was in a case, Murthy v Missouri, that had AG Bailey arguing that the state, and various individuals, were harmed by “censorship” when the Biden Administration pressured social media platforms to engage in ideological content moderation. Six justices voted to toss out his suit for lacking standing.