NETCHOICE LLC v. UTHMEIER

MOTION TO EXCLUDE TESTIMONY FROM DEFENDANTS' PROPOSED… — Attachment 289

Issue: In *NetChoice v. Uthmeier*, plaintiffs NetChoice LLC and the Computer & Communications Industry Association argue that defendants' expert Ravi Bapna should be excluded because his central opinion—that algorithmic curation is categorically distinct from human editorial judgment and therefore outside First Amendment protection—is an impermissible legal conclusion resting on no reliable methodology. The motion raises a question that goes beyond standard Daubert gatekeeping: whether any expert can supply the factual predicate Florida needs to argue that platform algorithms fall within the narrow reservation *Moody v. NetChoice*, 603 U.S. 707 (2024), left open for feeds operating with "no regard to independent content standards."

Plaintiffs filed this Daubert motion on April 3, 2026, in an ongoing First Amendment challenge to Florida's social-media content-regulation statute in the Northern District of Florida. The motion seeks exclusion of all testimony and opinions from Dr. Ravi Bapna, a business analytics professor retained by the state, under Federal Rule of Evidence 702. Plaintiffs press four grounds: that Bapna's core thesis constitutes an impermissible legal conclusion about First Amendment coverage; that his background in information systems does not qualify him to opine on editorial judgment and expressive speech; that his own deposition testimony acknowledged he employed "no methodology" and instead filtered sources through Google to support a pre-formed narrative, ignoring contrary findings in his own cited materials; and that *Moody*'s holding renders his opinions legally irrelevant because Bapna himself conceded that platforms enforce content moderation policies, foreclosing the "no regard to independent content standards" carveout on which his analysis depends.

This motion sits at the intersection of two of the most contested questions in platform law: what *Moody v. NetChoice* actually means for state content-regulation statutes, and how courts should evaluate expert testimony about how platform algorithms function. If the court excludes Bapna—particularly on the ground that no real-world platform operates as a pure engagement-maximizer indifferent to content standards—it removes the factual foundation Florida needs to sustain its regulatory theory after *Moody*, and signals how similar evidentiary battles will play out in challenges to comparable laws in other states. Even a narrower ruling grounded solely in methodology would leave open the *Moody* reservation question for the merits, but would deprive defendants of the only expert testimony asserting that algorithmic curation is categorically distinct from protected editorial judgment. For anyone tracking state social-media regulation efforts nationwide, this motion is an early indicator of the evidentiary threshold states will face in constructing post-*Moody* records.

MEMORANDUM in Support re 291 MOTION for Summary Judgment… — Attachment 292

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.

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.

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.