from the that's-not-how-any-of-this-works dept
Missouri Attorney General Andrew Bailey apparently thinks he gets to be editor-in-chief of every social media platform. In his latest attack on free speech rights, Bailey has announced a “first-in-the-nation rule” that would force social media companies to let users choose third-party content moderators rather than using the platforms’ own moderation systems.
There’s just one tiny problem: this completely ignores what the Supreme Court explicitly said about government control of content moderation just months ago in Moody v. NetChoice. Even crazier, Bailey claims that his new rule is based on the ruling in Moody.
As a reminder, the Supreme Court’s ruling in last year’s Moody v. NetChoice case, the Justices made it quite clear that the First Amendment protects social media content moderation decisions, and that the state has no business telling companies how to moderate. Justice Kagan, in the majority opinion, signed onto by Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett, made it clear that what social media companies do in content moderation is quintessential protected First Amendment activity no different than editors of a newspaper choosing what to publish:
In short, content moderation is protected by the First Amendment, and states are not able to simply ignore that. Indeed, the ruling had even more explicit words for the Fifth Circuit, which had ruled earlier (in an absolutely nutty ruling) that states could easily pass laws that told websites how to moderate. The Supreme Court made it clear that such a claim was utter nonsense:
Indeed, the Supreme Court said that the Fifth Circuit’s attempt to block social media companies from moderating in a particular way directly would violate the First Amendment:
So, you’d have to be pretty fucking bad at reading to think that this case somehow blesses the idea that the government can decide how social media companies can moderate.
Enter Missouri Attorney General Andrew Bailey. Bailey is no stranger to attacking the free speech rights of those he disagrees with.
Last week, Bailey announced a new rule, based on his reading of the Moody decision, that would effectively make him Missouri’s Chief Content Moderation Officer. Under the guise of “protecting free speech,” Bailey is attempting to use Missouri’s consumer protection laws to force social media companies to let users bypass their moderation systems entirely:
If this sounds familiar, it should. It’s exactly the kind of government interference in content moderation that the Supreme Court just said states can’t do.
Here’s the truly ironic part: third-party content moderation is actually a great idea. I should know — I wrote a pretty well-known paper advocating for exactly that approach, and I now serve on the board of Bluesky, currently the only major social platform embracing this model.
But there’s a world of difference between believing companies should adopt better moderation practices and claiming they’re breaking the law by not doing so. Bailey’s attempt to force this change through government mandate is not just legally backwards — it’s exactly the kind of state interference in editorial decisions that the First Amendment was designed to prevent.
Bailey’s claim that Moody somehow supports his position is particularly brazen. He specifically cites the Court’s mention of “competition laws” as justification:
But Bailey either didn’t read or deliberately ignored the actual context. The Court only mentioned competition laws to explicitly contrast them with content moderation mandates. Here’s what they actually said:
The Court couldn’t be more clear: while states can enforce genuine competition laws, they absolutely cannot use that power as a backdoor to control content moderation decisions. They even added a footnote specifically addressing attempts to twist competition law precedent (like Turner, which conservatives have long despised) to justify content moderation mandates:
So either Missouri AG Andrew Bailey cannot read a basic Supreme Court decision, or he assumes no one else can.
Perhaps the most telling irony in all of this? If Bailey succeeds, his rule would force his good friend Elon Musk — for whom Bailey has enthusiastically conducted censorial investigations designed to chill speech — to allow third-party moderation on ExTwitter. Something tells me neither Bailey nor Musk have thought through the implications of trying to become Missouri’s content moderation czar.