NetChoice, LLC v. Attorney General, State of Florida
Not yet reported (2022)
Rule of Law:
The First Amendment protects the editorial judgment of private social media platforms in moderating content, and state laws compelling or unduly burdening these moderation decisions are subject to heightened scrutiny, generally failing to survive intermediate scrutiny.
Facts:
- Social media platforms collect and disseminate third-party content (posts) to their users.
- These platforms are private enterprises that engage in editorial judgment by removing posts that violate their terms of service or community standards and by prioritizing/displaying content in users' feeds.
- The State of Florida enacted S.B. 7072, specifically motivated by a perception that large 'big tech' social media companies were silencing 'conservative' speech.
- S.B. 7072 defines 'social media platform' using size and revenue thresholds, targeting major platforms like Facebook, Twitter, YouTube, and TikTok.
- The law includes provisions that prohibit platforms from deplatforming political candidates or journalistic enterprises, applying post-prioritization or shadow banning algorithms for candidate content, and requires platforms to apply content moderation standards consistently.
- S.B. 7072 also imposes disclosure obligations, such as requiring platforms to publish their content moderation standards, inform users of rule changes, provide user view counts, and give a 'thorough rationale' for each content moderation decision.
- Initially, the law exempted platforms operated by companies owning theme parks, but this exemption was repealed after Disney executives publicly criticized another recently enacted Florida law.
Procedural Posture:
- NetChoice, LLC and the Computer & Communications Industry Association (Plaintiffs) sued Florida officials (Defendants) responsible for enforcing S.B. 7072 under 42 U.S.C. § 1983 in the United States District Court for the Northern District of Florida.
- Plaintiffs sought a preliminary injunction against enforcement of S.B. 7072, arguing it violated their First Amendment free speech rights and was preempted by federal law.
- The District Court granted NetChoice's motion and preliminarily enjoined enforcement of S.B. 7072 in its entirety, holding that the provisions were likely preempted by 47 U.S.C. § 230(c)(2) and implicated the First Amendment, applying strict scrutiny due to viewpoint-based purpose.
- The State of Florida (Defendants-Appellants) appealed the District Court's preliminary injunction to the United States Court of Appeals for the Eleventh Circuit.
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Issue:
Does the First Amendment protect the content moderation decisions of private social media platforms, thereby rendering unconstitutional a state law that restricts their ability to deplatform users, prioritize content, or requires burdensome disclosures?
Opinions:
Majority - Circuit Judge Newsom
Yes, the First Amendment protects the content moderation decisions of private social media platforms, and most of Florida's S.B. 7072 is substantially likely to be unconstitutional because it impermissibly burdens that protected speech. The court held that social media platforms are private actors whose content moderation decisions constitute protected exercises of editorial judgment and expressive conduct under the First Amendment. This conclusion is supported by Supreme Court precedent on editorial judgment (Miami Herald Publishing Co. v. Tornillo, Pacific Gas & Electric Co. v. Public Utilities Commission of California, Turner Broadcasting Systems, Inc. v. FCC, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston) which establish that private entities' choices about whether, to what extent, and in what manner to disseminate third-party-created content are protected. The court also found these decisions to be inherently expressive conduct, where a 'reasonable person would interpret [the conduct] as some sort of message.' The court rejected Florida's arguments that the platforms were merely 'hosting' speech (distinguishing PruneYard Shopping Center v. Robins and Rumsfeld v. Forum for Academic & Institutional Rights, Inc.) or could be treated as 'common carriers.' Social media platforms do not operate as common carriers as they make individualized, content-based decisions and are distinguished by federal law (Telecommunications Act of 1996) and Supreme Court precedent (Reno v. American Civil Liberties Union). The court determined that the content-moderation restrictions of S.B. 7072 (candidate deplatforming, posts by/about candidates, journalistic enterprises, consistency, 30-day restriction, user opt-out) were substantially likely to fail even intermediate scrutiny. Florida failed to demonstrate a substantial or compelling governmental interest in 'leveling the expressive playing field' or 'counteracting unfair private censorship,' as these interests are antithetical to the First Amendment. Furthermore, the provisions were not narrowly tailored, broadly prohibiting content removal regardless of content or community standard violations. For disclosure provisions, the court applied the Zauderer standard, finding most (publishing standards, rule changes, view counts, candidate free advertising) to be likely constitutional as they provided factual information to consumers and were not unduly burdensome. However, the requirement to provide a 'thorough rationale' for each content moderation decision was found substantially likely to be unconstitutional. This provision was deemed unduly burdensome due to the millions of daily moderation decisions and the potential for massive liability for vague terms like 'thorough,' which would 'chill protected speech.' The user-data-access requirement was found not to trigger First Amendment scrutiny. Thus, the court affirmed the preliminary injunction for the unconstitutional content moderation restrictions and the unduly burdensome 'thorough rationale' disclosure, while vacating the injunction for the other disclosure and user-data access provisions.
Analysis:
This landmark decision significantly expands and clarifies the First Amendment protections afforded to social media platforms, affirming their role as entities that exercise editorial judgment rather than neutral conduits. It sets a high bar for government attempts to regulate content moderation, rejecting 'common carrier' analogies and 'leveling the playing field' as legitimate state interests. The ruling will likely embolden platforms to maintain their content policies without fear of state interference, but could also exacerbate concerns about platform power and potential bias. Future legislative attempts to regulate social media will need to carefully navigate these First Amendment precedents, focusing on content-neutral regulations or disclosures that are not unduly burdensome.
