Missouri’s attorney general (AG) announced on X.com (formerly Twitter) that he is “issuing a rule requiring Big Tech to guarantee algorithmic choice for social media users.” [X.com post (January 17, 2025, roughly 3:35 p.m. EST)] He intends to use his authority “under consumer protection law,” known as the Missouri Merchandising Practices Act in that state, “to ensure Big Tech companies are transparent about the algorithms they use and offer consumers the option to select alternatives.” [x.com post] The Missouri AG touts this rule as the “first of its kind” in an “effort to protect free speech and safeguard consumers from censorship.” [Press release]
Although the text of the rule has not been released, the press release indicates that the rule will “clarify that it is an unfair, deceptive, fraudulent, or otherwise unlawful practice” to “operate a social media platform unless the platform permits users the opportunity to select a third-party content moderator of their choice, rather than rely on the content moderation provided directly by the social media platform.” [Press release] To comply, social media platforms (not defined) must:
- Provide users with a screen “to choose among competing content moderators” upon activation and every six months after that;
- Ensure that the choice screen does not default to any selection;
- Ensure that the choice screen does not “favor the social media platform’s content moderator over those of third parties;”
- Permit that “content moderator interoperable access to data on the platform in order to moderate what content is viewed by the user” should a user choose a different third-party content moderator; and
- Refrain from allowing a social media company to “moderate, censor, or suppress content” if a user’s “chosen content moderator would otherwise permit viewing that content.” [Press release]
Aside from allowing users to choose their own content moderator, the Missouri AG has not described how the rule would impact social media companies’ algorithms. The details of the rule should be forthcoming as the AG has promised to hold forums and follow a public comment process.
The proposed rule allegedly follows the “roadmap” laid down in the recent U.S. Supreme Court decision in Moody v. NetChoice, LLC, 603 U.S. 707 (2024). In that case, laws enacted by Florida and Texas sought to regulate social media companies’ content moderation practices. Although the Court did not ultimately decide the constitutionality of those laws, it did outline some applicable free speech principles related to state actors regulating social media. It explained that (1) curating and editing a third party’s speech is itself protected speech, (2) private speakers excluding disfavored speech is an expressive choice, and (3) states cannot advance some points of view or “better balance” the marketplace of ideas by burdening others’ speech. Due to the undeveloped record and missteps in the legal analysis, several justices opined on possible applications of the law under the First Amendment, but the Court remanded the case for further proceedings.
This proposed rule represents another data point showing an upward trend of state AGs exercising their powers under consumer protection statutes and long-standing state laws against “Big Tech” and in the arena of artificial intelligence (AI). In the past two weeks, the New Jersey and Oregon AGs have both issued AI guidance under their respective state’s anti-discrimination and consumer protection statutes, joining their colleagues from Texas and Massachusetts. State AGs are making clear that they will not hesitate to enforce state consumer protection, privacy, or antidiscrimination laws as they deem necessary. Though the “devil is in the details,” the Missouri AG’s proposed rule attempts to traverse perilous ground implicating First Amendment and other constitutional freedoms. This development is worth watching as the details of the rule emerge.
Troutman Pepper Locke’s State AG team helps large corporate clients navigate high-stakes state AG enforcement matters by developing effective strategies that consider the significant impacts on clients. Recognized nationally by Chambers USA and Legal 500, our team maintains strong relationships with AGs and their staff across the political spectrum, leveraging deep experience to defend, negotiate, and litigate complex cases. Based in offices throughout the U.S., our team has handled high-stakes bet-the-company state AG enforcement matters and state AG litigation when necessary.
Troutman Pepper Locke State Attorneys General Team
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Ashley Taylor – Co-leader and Firm Vice Chair Ashley is co-leader of the firm’s nationally ranked State Attorneys General practice, vice chair of the firm, and a partner in its Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He helps his clients navigate the complexities involved with multistate attorneys general investigations and enforcement actions, federal agency actions, and accompanying litigation. |
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Clay Friedman – Co-leader Clayton is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice, multidisciplinary teams with decades of experience crafting effective strategies to help deter or mitigate the risk of enforcement actions and litigation. |
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Stephen Piepgrass Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on enforcement actions, investigations, and litigation. Stephen primarily represents clients engaging with, or being investigated by, state attorneys general and other state or local governmental enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, with a particular focus on heavily regulated industries. |
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Michael Yaghi Michael is a partner in the firm’s State Attorneys General and Regulatory Investigations, Strategy + Enforcement (RISE) Practice Groups, nationwide teams that advise clients on consumer protection enforcement matters and other regulatory issues. |
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Samuel E. “Gene” Fishel Gene is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) practice, based in the Richmond office. He brings extensive regulatory experience, having most recently served as senior assistant attorney general and chief of the Computer Crime Section in the Office of the Attorney General of Virginia, and as special assistant U.S. attorney in the Eastern District of Virginia for 20 years. |
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Chuck Slemp Chuck advises clients on a wide range of complex issues that frequently involve government actions, including investigations, inquiries, regulatory matters, and litigation. With a distinguished background in the law and public service, he served as chief deputy attorney general of Virginia before joining the firm. In addition to overseeing the Department of Law and Division of Debt Collection, Chuck managed a team of attorneys who handle complex litigation and investigations. He also directed the attorney general’s legislative affairs and represented the attorney general in various capacities. |
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Tim Bado Tim is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, where he represents corporations and individuals facing potential civil and criminal exposure. Tim’s experience in government investigations, enforcement actions, and white-collar litigation spans a number of industries, including financial services, pharmaceutical, health care, and government contracting, among others. |
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Jessica Birdsong Jessica is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. She received her J.D. from the University of Richmond School of Law, magna cum laude, where she served as associate articles editor of the Journal of Law & Technology. |
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Chris Carlson Chris Carlson represents clients in regulatory, civil and criminal investigations and litigation. In his practice, Chris regularly employs his prior regulatory experience to benefit clients who are interacting with and being investigated by state attorneys general. |
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Blake R. Christopher Blake collaborates with clients on matters related to government contracting, investigations, and disputes. His senior-level government experience generates valuable insights and strategies for clients across a variety of industries. |
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Nick Gouverneur Nick is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice Group. |
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Natalia Jacobo Natalia is an associate in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice. She focuses her practice on two primary areas: government contracting and state attorney general work. |
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Namrata Kang Namrata (Nam) is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. She routinely advises clients on a wide variety of state and federal regulatory matters, with a particular emphasis on state consumer protection laws relating to consumer financial services and marketing and advertising. |
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Michael Lafleur Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general. |
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Lane Page Lane specializes in federal and state regulatory investigations and complex civil litigation. He focuses on representing financial institutions and other businesses, with a particular emphasis on consumer protection and fair lending issues. |
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Trey Smith Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice. He focuses his practice on helping financial institutions and consumer facing companies navigate regulatory investigations and resulting litigation. |
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Daniel Waltz Daniel is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and State Attorneys General team. He counsels clients in connection with navigating complex government investigations, regulatory compliance, and transactions, involving state and federal government contracting obligations. Drawing on his broad experience as a former assistant attorney general for the state of Illinois, Daniel is a problem solver both inside and outside the courtroom. |
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Cole White Cole is a member of the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) group. He has a decade of experience working in the attorney general community, having joined the firm from the Wyoming Office of the Attorney General, where he was assistant attorney general. |
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Stephanie Kozol Stephanie is Troutman Pepper Locke’s senior government relations manager in the state attorneys general department. |