Eleventh Circuit Strikes Down Florida Law Intended To Prohibit Social Media Platforms From Censoring Certain Speech On Grounds That Social Media Platforms Exercise First Amendment-Protected Editorial Judgment

Published date02 August 2022
Subject MatterLitigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Trials & Appeals & Compensation, Social Media
Law FirmCahill Gordon & Reindel LLP
AuthorMr Joel Kurtzberg, John MacGregor and Jason Rozbruch

On May 23, 2022, the United States Court of Appeals for the Eleventh Circuit decided NetChoice, LLC v. Att'y Gen., Fla., 2022 WL 1613291 (11th Cir. May 23, 2022), in which the court held that most of the provisions in Florida S.B. 7072'a law intended to prohibit social media platforms, such as Twitter and Facebook, from censoring certain speech'were substantially likely to violate the platforms' First Amendment free speech rights. Although the law was intended to protect First Amendment rights'i.e., to protect certain speech from censorship by social media platforms'the Eleventh Circuit determined that the law itself violated the First Amendment by restricting the social media platforms' right to so censor and moderate as the platforms saw fit. That kind of content moderation, the court found, is constitutionally-protected "editorial judgment." The court also held that social media platforms are not "common carriers" with lessened First Amendment rights. In so holding, the Eleventh Circuit has created a circuit split, departing from the decision of the United States Court of Appeals for the Fifth Circuit (just twelve days earlier, on May 11, 2022) to permit enforcement of the substantially similar Texas H.B. 20.1 It appears likely that the Supreme Court will ultimately weigh in and provide guidance regarding how the First Amendment should be applied to these statutes.

I. Factual and Procedural Background

On May 25, 2021, Florida Governor Ron DeSantis approved S.B. 7072, which prohibits certain social media platforms from "deplatforming" candidates (which the bill defines as deleting or banning from the platform for more than 14 days), from prioritizing or deprioritizing candidate-related posts and messages, and from censoring "journalistic enterprises" based on content. S.B. 7072's provisions may be broken down into three categories: (1) content-moderation restrictions, including prohibitions on deplatforming and content-prioritization algorithms; (2) disclosure obligations, including a requirement that any censorship be accompanied by a "thorough rationale" explaining why the platform took the action; and (3) a user-data requirement, under which a deplatformed user may access the user's data and content for at least 60 days following the removal.

On May 27, 2021, NetChoice and the Computer & Communications Industry Association ("CCIA")'trade associations representing internet and social media companies including Facebook, Twitter, Google, and TikTok' brought suit under 42 U.S.C. ' 1983 in the United States District Court for the Northern District of Florida against the Florida officials charged with enforcing the law. NetChoice and CCIA sought to enjoin the law's enforcement on several grounds, including that it violated the social media companies' right to free speech under the First Amendment, and that the state law was preempted by Section 230 of the Communications Decency Act (47 U.S.C. ' 230).2

On June 30, 2021, the district court granted plaintiffs' motion for a preliminary injunction, enjoining enforcement of S.B. 7072 in its entirety. The court found that (1) S.B. 7072 implicated the First Amendment because the platforms exercise "editorial judgment" in "moderating the content posted by users"3; (2) strict scrutiny was warranted because the entire bill was "motivat[ed]" by the Florida legislature's "hostility to the social media platforms' perceived liberal viewpoint"4; (3) S.B. 7072 could not withstand strict, or even intermediate, scrutiny; and (4)...

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