11th Circuit: Fla. Social Moderation Limits Likely Unconstitutional

The opinion could mean a circuit split with the 5th Circuit, which without explanation lifted a preliminary injunction on a similar Texas law. The tech group plaintiffs in both cases, NetChoice and the Computer and Communications Industry Association, have filed an emergency challenge of that ruling at the Supreme Court (see 2205200024 and 2205180045). NetChoice and CCIA filed the 11th Circuit decision at the higher court Monday as a "supplemental authority in support" of that application.

The 11th Circuit maintained a lower court’s preliminary injunction on the Florida law’s content-moderation rules and one "particularly onerous" disclosure rule requiring platforms to give a thorough rationale for every moderation decision. But it vacated and remanded enjoinment on other “far less burdensome” disclosure provisions, which the court found are unlikely to violate the First Amendment. Also, the appeals court allowed a requirement that websites allow deplatformed users to access their own data for at least 60 days.

“With minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” wrote Judge Kevin Newsom with Judges Gerald Tjoflat and Ed Carnes. "We hold that it is substantially likely that social-media companies -- even the biggest ones -- are 'private actors' whose rights the First Amendment protects, ... 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.”

But NetChoice and CCIA aren't "substantially likely to succeed on the merits of its claim that the entire Act is impermissibly viewpoint-based,” the appeals court said. The Florida law’s “application to only the largest social-media platforms might be viewpoint-motivated, or it might be based on some other ‘special characteristic’ of large platforms -- for instance, their market power,” wrote Newsom: Disclosure rules “provide users with helpful information that prevents them from being misled about platforms’ policies.”

“This ruling means platforms cannot be forced by the government to disseminate vile, abusive and extremist content under penalty of law,” said CCIA President Matt Schruers. “This is good news for internet users, the First Amendment and free speech in a democracy.” NetChoice General Counsel Carl Szabo said “the 11th Circuit makes clear that regardless of size, online companies are private actors whose rights the First Amendment protects, putting to bed the red herring assertions of common carrier or dominance.”

Florida Attorney General Ashley Moody is “pleased the court recognized the state’s authority to rein in social media companies and upheld major portions of Florida’s law leading the way in doing so,” the Republican tweeted. “We will continue to vigorously defend Florida’s authority to demand accountability from Big Tech.”

While the opinion was mixed for social platforms, it potentially sets up a circuit split since the 5th Circuit seems likely to overturn a lower court’s preliminary injunction on the similar Texas law’s content-moderation rules, said Del Kolde, Institute for Free Speech (IFS) senior attorney. Both sides want to see this case go to the Supreme Court and the issue seems “important enough,” said Kolde: With a circuit split, it would have a “much better than average chance.”

"We are currently headed toward a circuit split on these issues,” said TechFreedom Internet Policy Counsel Corbin Barthold on a Twitter Spaces webinar Monday. Before it was “still a big uphill climb” to get SCOTUS review, he said, but the 11th Circuit opinion is “really likely to prod the Supreme Court to act on the emergency application.”

Not Dumb Pipes

The Florida law “triggers First Amendment scrutiny because it restricts social-media platforms’ exercise of editorial judgment and requires them to make certain disclosures,” wrote Newsom: Strict scrutiny applies to some content-moderation restrictions while intermediate scrutiny applies to others, but “it is substantially likely” all “will not survive even intermediate scrutiny.” The court disagreed with Florida trying to support its case with Supreme Court rulings in 2006’s Rumsfeld v. Forum for Academic and Institutional Rights and 1980’s PruneYard Shopping Center v. Robins.

"Social-media platforms exercise editorial judgment that is inherently expressive,” the opinion said. Decisions "about what speech to permit, disseminate, prohibit, and deprioritize -- decisions based on platforms’ own particular values and views -- fit comfortably within the Supreme Court’s editorial-judgment precedents.”

"No one has an obligation to contribute to or consume the content that the platforms make available,” the opinion said. "While the Constitution protects citizens from governmental efforts to restrict their access to social media ... no one has a vested right to force a platform to allow her to contribute to or consume social-media content."

Social platforms aren’t “just servers and hard drives storing information or hosting blogs that anyone can access, and they’re not internet service providers reflexively transmitting data from point A to point B,” wrote Newsom. They spend “significant time and resources” curating users’ posts, and by “engaging in this content moderation, the platforms develop particular market niches, foster different sorts of online communities, and promote various values and viewpoints.”

Citing the 1996 Telecom Act and Supreme Court precedent, the 11th Circuit rejected Florida’s claim that social sites are common carriers. “We confess some uncertainty whether the State means to argue (a) that platforms are already common carriers, and so possess no (or only minimal) First Amendment rights, or (b) that the State can, by dint of ordinary legislation, make them common carriers, thereby abrogating any First Amendment rights that they currently possess,” noted Newsom. “Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier.”

The court pushed back on Florida using a statement by Supreme Court Justice Clarence Thomas to argue platforms should be considered carriers due to their market power. “The Supreme Court has squarely rejected the suggestion that a private company engaging in speech within the meaning of the First Amendment loses its constitutional rights just because it succeeds in the marketplace and hits it big.”