NETCHOICE LLC v. UTHMEIER
Issue
In *NetChoice v. Uthmeier*, Florida's state defendants argue that a trade association cannot bring First Amendment and Section 230 claims on behalf of its members when each member platform's algorithm is configured differently, making injury assessments inherently individualized. They further contend that recommendation algorithms are nonexpressive commercial tools that optimize for engagement rather than editorial judgment, placing the regulated conduct outside First Amendment protection entirely. The case asks, in the wake of the Supreme Court's 2024 *Moody v. NetChoice* remand, whether SB 7072's content-moderation restrictions survive constitutional scrutiny once the record is properly developed.
What Happened
Florida state defendants — led by Attorney General Uthmeier — filed this 63-page memorandum on April 3, 2026, in support of their own affirmative motion for summary judgment (Doc. 291) in the Northern District of Florida, following fact discovery on remand from *Moody v. NetChoice*. The brief advances five principal arguments: that associational standing fails because platform-by-platform algorithmic differences require individualized injury analysis; that plaintiffs' nominally as-applied challenges are functionally facial and must satisfy *Moody*'s demanding substantial-outweighs standard; that recommendation systems are nonexpressive "dumb pipes" stripped of First Amendment protection; that each SB 7072 provision independently survives scrutiny as content-neutral consumer protection or compelled disclosure under *Zauderer*; and that Section 230 does not create rights enforceable through § 1983. Defendants support the nonexpressive-algorithm argument with expert testimony and redacted internal platform documents they characterize as depicting Instagram's recommendation system in addiction and gambling terms. The brief seeks dismissal for lack of standing or, alternatively, summary judgment for defendants on all claims.
Why It Matters
The brief's most consequential — and most legally exposed — move is treating the "dumb pipe" framing as controlling law, when that language appears only in a three-Justice *Moody* concurrence in the judgment, not the majority opinion; if a court accepts it, the result would mark the most significant contraction of First Amendment protection for platform editorial activity in decades. The quasi-facial recharacterization argument is the brief's strongest procedural play, because *Moody*'s substantial-outweighs standard is black-letter law and plaintiffs' post-remand record may not satisfy it. The § 1983 cause-of-action argument, while less prominent in the brief, is doctrinally serious and could foreclose the Section 230 preemption claims entirely without reaching the merits — a clean, narrow path to partial judgment that courts sometimes prefer.
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