11th Circuit Holds That Social Media Companies’ Content-Moderation Decisions Protected by First Amendment

On Monday, May 23, 2022, the Eleventh Circuit Court of Appeals ruled in favor of social media companies that moderate content on their platforms because “the government can’t tell a private person or entity what to say or how to say it.”

Florida enacted a law, the first of its kind, that prohibits 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.” S.B. 7072 was enacted, according to Florida Governor Ron DeSantis, “to combat the ‘biased silencing’ of ‘our freedom of speech as conservatives. . . by the ‘big tech’ oligarchs in Silicon Valley.'” Governor DeSantis hoped the law would be used to “‘fight against [the] big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.'”

NetChoice and the Computer & Communications Industry Association sued the Florida Attorney General and the officials of the Florida Elections Commission, the officials tasked with enforcing the law. The plaintiffs sought to enjoin enforcement of portions of the law on the grounds “that the law’s provisions (1) violate the social-media companies’ right to free speech under the First Amendment and (2) are preempted by federal law.” The district court granted a preliminary injunction enjoining enforcement of the law and held that the law implicated the First Amendment.

The Florida officials appealed the case to the Eleventh Circuit, arguing that “the plaintiffs are unlikely to succeed on their preemption challenge because some applications of the Act are consistent with ยง 230.” They also argued that the law does not even implicate, let alone violate, the First Amendment “because the platforms aren’t engaged in protected speech.” The appeals court quickly disposed of the first argument “[b]ecause we conclude that the Act’s content-moderation restrictions are substantially likely to violate the First Amendment, and because that conclusion fully disposed of the appeal, we needn’t reach the merits of the plaintiffs’ preemption challenge.”

As to the question of whether the law likely violates the First Amendment, the appeals court considered whether social media platforms engage in protected activity, what level of scrutiny applies if protected activity is involved, and whether the law’s provisions survive that level of scrutiny. In its determination, the Eleventh Circuit held, in part, that (1) First Amendment scrutiny is triggered “because [the law] restricts social-media platforms’ exercise of editorial judgment and requires them to make certain disclosures;” (2) strict scrutiny applies to some portions of the law while intermediate scrutiny applies to other provisions; (3) “it is substantially likely that the Act’s content-moderation restrictions will not survive even intermediate scrutiny;” and (4) “the preliminary-injunction factors favor enjoining the provisions of the Act that are substantially likely to be unconstitutional.”

The Eleventh Circuit’s opinion reiterates multiple times that “[s]ocial-media platforms like Facebook, Twitter, YouTube, and TikTok are private companies with First Amendment rights,” and that “[w]hen a platform selectively removes what it perceives to be incendiary political rhetoric, pornographic content, or public-health misinformation, it conveys a message and thereby engages in ‘speech’ within the meaning of the First Amendment.”

Additional Reading

Florida law banning social media censorship is likely unconstitutional, 11th Circuit says, ABA Journal (May 24, 2022)

NetChoice, LLC, et al. v. Attorney General, State of Florida, et al. (Case No. 21-12355 (11th Cir. 2022))

Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech, Office of Governor Ron DeSantis (May 24, 2021)

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