Litigation Trends 2024

66 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 67 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C expressive nature of the use should proceed with caution. Supreme Court Tackles Social Media Content Moderation The Supreme Court’s 2023-2024 term may change the manner in which social media platforms monitor content. In late 2023, the Court agreed to hear First Amendment challenges to Florida and Texas state laws animated by perceived censorship of conservative viewpoints. Decisions on the constitutionality of these laws set up a clear split between the Fifth and Eleventh Circuits, which the Court is slated to resolve this term in the consolidated cases Moody et al. v. NetChoice LLC et al., case number 22277, and NetChoice LLC et al. v. Paxton, case number 22-555. Florida’s S.B. 7072 prohibits social media platforms from censoring or limiting the exposure of content by or about political candidates or journalistic enterprises without notifying them and providing an explanation. Fla. Stat. Ann. § 501.2041(1)-(3). Texas’s H.B. 20 similarly prohibits social media platforms from “censor[ing] a user, a user’s expression, or a user’s ability to receive the expression of another person” based on viewpoint and applies regardless of whether the viewpoint is expressed on social media or another medium. Tex. Civ. Prac. & Rem. Code Ann. § 143A.002. Taking diametrically opposed views, the Eleventh Circuit enjoined the Florida law, finding it would violate the platforms’ First Amendment rights, whereas the Fifth Circuit found that the Texas law did not. See NetChoice, LLC v. Attorney General, Florida, 34 F.4th 1196 (11th Cir. 2022); NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 445 (5th Cir. 2022). The Court certified for review: (1) whether the laws’ content-moderation restrictions comply with the First Amendment; and (2) whether the laws’ individualized-explanation requirements comply with the First Amendment. NetChoice LLC and the Computer & Communications Industry Association (“CCIA”), the internet trade associations challenging the laws, argue that the laws infringe on companies’ First Amendment rights because freedom of IP/Media FROM DOG-CHEW TOYS TO PRINCE: THE U.S. SUPREME COURT WEIGHS IN ON IMPORTANT IP QUESTIONS Case Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023) Moody et al. v. NetChoice LLC et al., No. 22-277, and NetChoice LLC et al. v. Paxton, No. 22-555 Impact Addresses the contours of the fair use defense to copyright infringement. Limits the scope of parody as a defense to trademark infringement May potentially change the manner in which social media platforms monitor and moderate content. Vote and Date of Opinion 7-2 (May 2023) 9-0 (June 2023) Forthcoming I P

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