NetChoice v. AG, Fla.
In NetChoice, LLC v. AG, Fla., 34 F.4th 1196 (11th Cir. May 23, 2022), the Eleventh Circuit held in favor of social media companies by mostly enjoining SB 7072, which Florida had enacted in May 2021 and codified at Fla. Stat. §§ 106.072, 501.2041 (this law sought to protect political candidates and journalistic organizations from censorship by large social media platforms). SB 7072 applied to social media platforms that do business in Florida, having more than $100 million in annual revenue or more than 100 million users. Fla. Stat. § 501.2041(1)(g).
The panel of judges was Newsom (appointed by Trump), Tjoflat (93 years old, appointed by Ford), and Ed Carnes (appointed by George H.W. Bush), all Circuit Judges, and the opinion for the court was written by Judge Newsom, without dissent.
| “ | Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube, or TikTok. But "whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary when a new and different medium for communication appears." Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 790, 131 S. Ct. 2729, 180 L. Ed. 2d 708 (2011) (quotation marks omitted). One of those "basic principles"—indeed, the most basic of the basic—is that "[t]he Free Speech Clause of the First Amendment constrains governmental actors and protects private actors." Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926, 204 L. Ed. 2d 405 (2019). Put simply, with minor exceptions, the government can't tell a private person or entity what to say or how to say it.
The question at the core of this appeal is whether the Facebooks and Twitters of the world—indisputably "private actors" with First Amendment rights—are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida insists that they aren't, and it has enacted a first-of-its-kind law to combat what some of its proponents perceive to be a concerted effort by "the 'big tech' oligarchs in Silicon Valley" to "silenc[e]" "conservative" speech in favor of a "radical leftist" agenda. To that end, the new law would, among other things, prohibit certain social-media companies from "deplatforming" political candidates under any circumstances, prioritizing or deprioritizing any post or message "by or about" a candidate, and, more broadly, removing anything posted by a "journalistic enterprise" based on its content. We hold that it is substantially likely that social-media companies—even the biggest ones—are "private actors" whose rights the First Amendment protects, Manhattan Cmty., 139 S. Ct. at 1926, that their so-called "content-moderation" decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms' ability to engage in content moderation unconstitutionally burden that prerogative. We further conclude that it is substantially likely that one of the law's particularly onerous disclosure provisions—which would require covered platforms to provide a "thorough rationale" for each and every content-moderation decision they make—violates the First Amendment. Accordingly, we hold that the companies are entitled to a preliminary injunction prohibiting enforcement of those provisions. Because we think it unlikely that the law's remaining (and far less burdensome) disclosure provisions violate the First Amendment, we hold that the companies are not entitled to preliminary injunctive relief with respect to them. |
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Id. at 1203.
| “ | It is substantially likely that S.B. 7072's content-moderation restrictions (§§ 106.072(2), 501.2041(2)(b), (c), (f), (g), (h), (j)) and its requirement that platforms provide a thorough rationale for every content-moderation action (§ 501.2041(2)(d)) violate the First Amendment. The same is not true of the Act's other disclosure provisions (§§ 106.072(4), 501.2041(2)(a), (c), (e)) and its user-data-access provision (§ 501.2041(2)(i)). | ” |
NetChoice, LLC v. AG, Fla., 34 F.4th 1196, 1231 (11th Cir. 2022) (footnote omitted).
Petition for Cert.
On August 17, 2022, Justice Clarence Thomas granted an application by Florida to extend the time to petition to the U.S. Supreme Court for a writ of certiorari from August 21 to September 21, 2022.[1]
