34 F.4th 1196
11th Cir.
2022
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Background

  • Florida enacted S.B. 7072, defining "social media platforms" by size/revenue thresholds and imposing content-moderation restrictions (e.g., bans on deplatforming candidates, prohibitions on deprioritizing posts about candidates and on censoring broadly‑defined “journalistic enterprises”), disclosure obligations (including a requirement to provide a “thorough rationale” for removals), and a user-data access rule.
  • NetChoice (trade associations for internet companies) sued Florida officials under 42 U.S.C. § 1983; the district court granted a preliminary injunction blocking §§ 106.072 and 501.2041 in full.
  • Florida defended the law as a permissible regulation requiring platforms to "host" speech (invoking PruneYard/FAIR) or as a common‑carrier regulation; NetChoice argued platforms’ moderation is protected editorial speech and expressive conduct.
  • The Eleventh Circuit held platforms’ content‑moderation decisions are First Amendment‑protected editorial judgments and that most of S.B. 7072’s content‑moderation restrictions substantially likely violate the First Amendment.
  • The court affirmed the preliminary injunction as to the content‑moderation provisions and the onerous “thorough rationale” disclosure, but vacated the injunction as to several less burdensome disclosure and the user‑data provisions.

Issues

Issue NetChoice (Plaintiff) Florida (Defendant) Held
Are platforms’ content‑moderation decisions "speech" protected by the First Amendment? Yes — moderation is editorial judgment and expressive conduct. No — platforms merely host third‑party speech or can be regulated like common carriers. Held: Yes. Moderation is protected editorial/expressive activity that triggers First Amendment scrutiny.
Do S.B. 7072’s content‑moderation restrictions violate the First Amendment? Yes — they burden protected editorial judgment and are impermissible. No — statute does not regulate platforms’ speech; it compels hosting and is permissible. Held: Substantially likely unconstitutional. Preliminary injunction affirmed for candidate deplatforming, deprioritization/shadow‑ban bans, journalistic‑enterprise protections, consistency, 30‑day rule, and user opt‑out.
Are the statute’s disclosure requirements (generally) permissible? Mixed — some disclosures may be lawful, but the "thorough rationale" notice is unduly burdensome and chilling. Permissible — disclosures are factual, consumer‑protective information. Held: Most disclosures permissible under Zauderer, but the §501.2041(2)(d) requirement (detailed written "thorough rationale" and precise explanation) is substantially likely unconstitutional.
Can the State treat platforms as common carriers or otherwise avoid First Amendment scrutiny by labeling/compelling them to host speech? No — platforms exercise editorial control and are not common carriers; the State may not recharacterize them to strip rights. Yes — platforms perform essential public functions and may be regulated to ensure access. Held: Platforms are not common carriers in nature or law; the State cannot avoid First Amendment review by so labeling them.

Key Cases Cited

  • Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (U.S. 1974) (newspaper editorial decisions are protected editorial judgment)
  • Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1 (U.S. 1986) (compelled dissemination of third‑party speech burdens speaker’s freedom)
  • Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (U.S. 1994) (carriage mandates implicate editorial discretion; content‑neutral rules get intermediate scrutiny)
  • Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (U.S. 1995) (selection for a parade is protected expressive conduct)
  • PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (U.S. 1980) (limited duties to allow speech on private property distinguished from editorial interference)
  • Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (U.S. 2006) (Solomon Amendment did not compel protected speech in that context)
  • Sorrell v. IMS Health Inc., 564 U.S. 552 (U.S. 2011) (speaker‑ and content‑based burdens warrant heightened scrutiny)
  • Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (U.S. 1985) (standard for permissible compelled commercial disclosures)
  • Brown v. Ent. Merchs. Ass'n, 564 U.S. 786 (U.S. 2011) (First Amendment principles apply to new/different media)
  • First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765 (U.S. 1978) (corporate speakers have First Amendment protections)
  • Reno v. ACLU, 521 U.S. 844 (U.S. 1997) (Internet is a broad forum not subject to broadcast‑style scarcity regulation)
  • United States v. O'Brien, 391 U.S. 367 (U.S. 1968) (intermediate scrutiny test for content‑neutral regulations of conduct)
  • Reed v. Town of Gilbert, 576 U.S. 155 (U.S. 2015) (definition and test for content‑based regulation)
  • Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (U.S. 1995) (viewpoint discrimination is an egregious form of content discrimination)
  • Nat'l Inst. of Fam. & Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. 2018) (limits on compelled speech/disclosures)
  • Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6 F.4th 1247 (11th Cir. 2021) (platform selection/exclusion constitutes expressive conduct)
  • Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235 (11th Cir. 2018) (context‑based test for expressive conduct)
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