The US Court of Appeals for the Eleventh Circuit Monday unanimously ruled in favor of a preliminary injunction against a Florida law regulating how social media companies moderate content on their platforms.
Last May Florida enacted Senate Bill 7072, a bill which applies to social media platforms with annual gross revenues over $100 million or 100 million monthly individual participants globally. It included measures against content moderation such as preventing platforms from deplatforming, “post-prioritizing” (changing the order of content in feed or search results) and shadow banning political candidates or content about them. Additionally it required them to disclose a “thorough rationale” behind censorship or deplatforming decisions, unless the content is obscene.
The bill asserted the importance of social media platforms for protecting citizens’ First Amendment rights since people “increasingly rely” on them to express their opinions. In his signing statement, Florida Governor Ron DeSantis noted the bill was intended to fight an alleged bias of platforms favoring a “dominant Silicon Valley ideology” against “conservative” content. Similar bills have been introduced by Texas and Georgia.
NetChoice LLC and the Computer and Communications Industry Association (CCIA), representing large social media companies, challenged the bill in US District Court claiming the bill violated companies’ First Amendment rights to free speech, and the court issued a preliminary injunction against the bill.
On appeal the state argued content on social media did not constitute “protected speech” and was hence out of the purview of the First Amendment. The court, however, found the companies exercised “editorial judgment” over the content on their platforms based on what they deemed “valuable” and “appropriate,” thus constituting speech or expressive conduct within the meaning of, and thus protected by, the First Amendment.
In the alternative, the state argued social media platforms should be treated akin to “common carriers”. The court found this an evasive tactic. While social media platforms are open to the public, they require users to accept “terms of service” and abide by “community standards.” Moreover the Telecommunications Act of 1996 explicitly distinguishes “interactive computer services” from common carriers.
The court affirmed the District Court’s preliminary injunction with respect to all the content moderation measures and the requirement for a “thorough rationale” behind deplatforming decisions since they were “substantially likely” to be unconstitutional. However the injunction against other requirements (such as allowing users to access their own content after being deplatformed) was vacated since they were substantially likely to be constitutional.
This runs contrary to a decision earlier this month by the US Court of Appeals for the Fifth Circuit staying a preliminary injunction against a similar Texas law.
