A Fisking of the 11th Circuit Opinion in Florida vs. Big Tech (Netchoice v. Moody)
The opinion is here. Lawyer Ari Cohn has a Twitter thread on it and Professor Eric Goldman has a blogpost, and they like both outcome and reasoning. I don’t. Thus, I’m fisking it here. “Fisking” may be the wrong term, since this opinion is not “an article full of lies” of the sort that gave rise to the term. But it’s useful to indicate that I’m going to quote the entire original document and put my comments in as we go along. Judge Newsom is actually a good writer, which makes it easier to spot his errors. (I’m grateful; in refereeing a submission, nothing is so infuriating as a paper with good ideas and bad writing; a paper with bad ideas and good writing, on the other hand, is a pleasure to referee because it is so easy to make suggestions for improvement and feel like you’re worthwhile as a referee.)
Some of the boldfacing in the opinion is mine, some the Court’s. My comments are in boldface every so often. What I’m going to do is publish this before it’s finished. Then I’ll keep on working on it as I have time (there’s a SC amicus for 303 Creative that I need to work on too). But this way, those interested will have something to chew on.
I’d love to get comments. In fact, I think I might also post this on Google Docs, because there I can open up Edits, I think, to allow people to put comments at the side, on specific paragraphs, rather than the end. Also, anything here may be quoted with or without attribution, but I retain copyright (that is, anybody can use it, without citing me, but you can’t keep me from posting it too by getting the copyright away from me).
The google Docs version is at https://docs.google.com/document/d/1VZsCMmgKH8Wt9Gy3ee_VwSJTB7lqt-tGb5pVBY_vSjM/edit
The Substack version is at https://ericrasmusen.substack.com/publish/post/56360927
Before NEWSOM, TJOFLAT, and ED CARNES, Circuit Judges.
NEWSOM, Circuit Judge: Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube, or TikTok. But “whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011) (quotation marks omitted). One of those “basic principles”—indeed, the most basic of the basic—is that “[t]he Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019). Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.
A good start.
The question at the core of this appeal is whether the Facebooks and Twitters of the world—indisputably “private actors” with First Amendment rights—are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida insists that they aren’t, and it has enacted a first-of-its-kind law to combat what some of its proponents perceive to be a concerted effort by “the ‘big tech’ oligarchs in Silicon Valley” to “silenc[e]” “conservative” speech in favor of a “radical leftist” agenda. To that end, the new law would, among other things, prohibit 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.
Sort of. Similar to whether a shopping mall is engaged in constitutionally protected expressive activity when it moderates and curates the protesters it allows to use its space based on their subject matter. Or whether a shopping mall is engaged in constitutionally protected expressive activity when it moderates and curates the protesters it allows to use its space based on their race. Can a magazine say that it will not publish black writers? Is Twitter like a magazine?
We hold that it is substantially likely…
That’s because this is a decision about a preliminary injunction, not on the merits of whether the Florida law illegally infringes on Twitter’s free speech. For a preliminary injunction, Twitter doesn’t have to prove that it would win on the merits, just that it is substantially likely to win on the merits. There are three other criteria that we’ll come to later.
… that social-media companies—even the biggest ones—are “private actors” whose rights the First Amendment protects, Manhattan Cmty., 139 S. Ct. at 1926, …
Sort of. Like any corporation, they are private actors whose rights the First Amendment protects. Like any corporation, their speech can be heavily regulated— e.g., they can’t print cigarette advertisements.
…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.
That is, the Tech Lords win on the biggest issue, whether Florida can require Twitter to not ban political candidates they don’t like.
We further conclude that it is substantially likely that one of the law’s particularly onerous disclosure provisions—which would require covered platforms to provide a “thorough rationale” for each and every content-moderation decision they make—violates the First Amendment.
That is, the Tech Lords also win on whether Twitter has to explain to someone why they are banning them.
Accordingly, we hold that the companies are entitled to a preliminary injunction prohibiting enforcement of those provisions. Because we think it unlikely that the law’s remaining (and far less burdensome) disclosure provisions violate the First Amendment, we hold that the companies are not entitled to preliminary injunctive relief with respect to them.
The Tech Lords do not have a 100% victory. As we will see, Florida does win on something like its requirement that Twitter let banned users download their old posts and their list of followers instead of just deleting everything.
I
A
We begin with a primer: This is a case about social-media platforms. (If you’re one of the millions of Americans who regularly use social media or can’t remember a time before social media existed, feel free to skip ahead.)
Very nice. This Court is following the good writing of Judge Posner, who popularized the use of contractions and The Clear Style in judicial opinions, dignified but conversational, as if your 60-year-old high-school teacher was explaining something to the class. (Assuming you had a high school where teachers are called Mr or Mrs and treated with respect.)
At their core, social-media platforms collect speech created by third parties—typically in the form of written text, photos, and videos, which we’ll collectively call “posts”—and then make that speech available to others, who might be either individuals who have chosen to “follow” the “post”-er or members of the general public. Social-media platforms include both massive websites with billions of users—like Facebook, Twitter, YouTube, and TikTok— and niche sites that cater to smaller audiences based on specific interests or affiliations—like Roblox (a child-oriented gaming network), ProAmericaOnly (a network for conservatives), and Vegan Forum (self-explanatory).
Three important points about social-media platforms: First—and this would be too obvious to mention if it weren’t so often lost or obscured in political rhetoric—platforms are private enterprises, not governmental (or even quasi-governmental) entities. No one has an obligation to contribute to or consume the content that the platforms make available. And correlatively, while the Constitution protects citizens from governmental efforts to restrict their access to social media, see Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), no one has a vested right to force a platform to allow her to contribute to or consume social-media content.
Second, a social-media platform is different from traditional media outlets in that it doesn’t create most of the original content on its site; the vast majority of “tweets” on Twitter and videos on YouTube, for instance, are created by individual users, not the companies that own and operate Twitter and YouTube. Even so, platforms do engage in some speech of their own: A platform, for example, might publish terms of service or community standards specifying the type of content that it will (and won’t) allow on its site, add addenda or disclaimers to certain posts (say, warning of misinformation or mature content), or publish its own posts.
Third, and relatedly, social-media platforms aren’t “dumb pipes”: They’re not 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. Rather, when a user visits Facebook or Twitter, for instance, she sees a curated and edited compilation of content from the people and organizations that she follows. If she follows 1,000 people and 100 organizations on a particular platform, for instance, her “feed”—for better or worse—won’t just consist of every single post created by every single one of those people and organizations arranged in reverse-chronological order. Rather, the platform will have exercised editorial judgment in two key ways: First, the platform will have removed posts that violate its terms of service or community standards—for instance, those containing hate speech, pornography, or violent content. See, e.g., Doc. 26-1 at 3–6; Facebook Community Standards, Meta, https://transparency.fb.com/policies/community-standards (last accessed May 15, 2022). Second, it will have arranged available content by choosing how to prioritize and display posts—effectively selecting which users’ speech the viewer will see, and in what order, during any given visit to the site. See Doc. 26-1 at 3.
Well described.
Accordingly, a social-media platform serves as an intermediary between users who have chosen to partake of the service the platform provides and thereby participate in the community it has created. In that way, the platform creates a virtual space in which every user—private individuals, politicians, news organizations, corporations, and advocacy groups—can be both speaker and listener. In playing this role, the platforms invest significant time and resources into editing and organizing—the best word, we think, is curating—users’ posts into collections of content that they then disseminate to others. By engaging in this content moderation, the platforms develop particular market niches, foster different sorts of online communities, and promote various values and viewpoints.
That is the platforms prioritize what posts you see of the people you follow, and put in ads, and put in posts by people you don’t follow, using computer formulas and sometimes human intervention.
B
The State of Florida enacted S.B. 7072—in the words of the Act’s sponsor, as quoted in Governor DeSantis’s signing statement—to combat the “biased silencing” of “our freedom of speech as conservatives . . . by the ‘big tech’ oligarchs in Silicon Valley.” News Release: Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech (May 24, 2021).1 The bill, the Governor explained, was passed to take “action to ensure that ‘We the People’—real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites” and to check the “Big Tech censors” that “discriminate in favor of the dominant. 1 By signing the bill, the Governor sought to “fight[] against [the] big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.” Id.
S.B. 7072’s enacted findings are more measured.
But you cannot deny that every single thing the Governor said is true. The only question is whether it is legal for Big Tech to do this.
They assert that private social-media platforms are important “in preserving first amendment protections for all Floridians” and, comparing platforms to “public utilities,” argue that they should be “treated similarly to common carriers.” S.B. 7072 § 1(5), (6).
That’s the key— are internet platforms common carriers that the government is free to regulate?
That, the Act says, is because social-media platforms “have unfairly censored, shadow banned, deplatformed, and applied post-prioritization algorithms to Floridians” and because “[t]he state has a substantial interest in protecting its residents from inconsistent and unfair actions” by the platforms. Id. § 1(9), (10).
I’d put it differently than Florida does.
(1) Democracy needs an open public square, and
(2) Natural monopolies need regulation of quality to operate in the public interest, unlike most businesses.
To these ends, S.B. 7072 contains several new statutory provisions that apply to “social media platforms.” The term “social media platform” is defined using size and revenue thresholds that appear to target the “big tech oligarchs” about whose “narrative” and “ideology” the bill’s sponsor and Governor DeSantis had complained.
Important point. Are they being targeted for their radical leftwing politics? Yes, but only because their big size makes them natural monopolies. Florida did not target small leftwing platforms.
Even so, the definition’s broad conception of what a “social media platform” does may well sweep in other popular websites, like the crowdsourced reference tool Wikipedia and virtual handmade craft-market Etsy:
That’s fine. In fact, that shows it is not purely ideological, maybe (though Wikipedia is leftwing when it comes to anything political, and bans use of non-Establishment sources such as the London Daily Mail and the New York Post.
[A]ny information service, system, Internet search engine, or access software provider that:
1. Provides or enables computer access by multiple users to a computer server, including an Internet platform or a social media site;
2. Operates as a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity;
3. Does business in the state; and
4. Satisfies at least one of the following thresholds:
a. Has annual gross revenues in excess of $100 million . . .
b. Has at least 100 million monthly individual platform participants globally.
Fla. Stat. § 501.2041(1)(g). As originally enacted, the law’s definition of “social media platform” expressly excluded any platform “operated by a company that owns and operates a theme park or entertainment complex.” Id. But after the onset of this litigation— and after Disney executives made public comments critical of another recently enacted Florida law—the State repealed S.B. 7072’s theme-park-company exemption. See S.B. 6-C (2022).
Interesting— Disney had special-interest protection. Probably that is because it wasn’t thought to be ideological, even though it fit the criteria otherwise. But then it was shown to be run by radical leftwingers grooming children to accept deviant sexual practices.
The relevant provisions of S.B. 7072—which are codified at Fla. Stat. §§ 106.072 and 501.20412—can be divided into three categories: (1) content-moderation restrictions; (2) disclosure obligations; and (3) a user-data requirement.2
Content-Moderation Restrictions
Candidate deplatforming: A social-media platform “may not willfully deplatform a candidate for office.” Fla. Stat. § 106.072(2). The term “deplatform” is defined to mean “the action or practice by a social media platform to permanently delete or ban a user or to temporarily delete or ban a user from the social media platform for more than 14 days.” Id. § 501.2041(1)(c).
Posts by or about candidates: “A social media platform may not apply or use post-prioritization or shadow banning algorithms for content and material posted by or about . . . a candidate.” Id. § 501.2041(2)(h). “Post prioritization” refers to the practice of arranging certain content in a more or less prominent position in a user’s feed or search results. Id. § 501.2041(1)(e).3 “Shadow banning” refers to any action to “limit or eliminate the exposure of a user or content or material posted by a user to other users of [a] . . . platform.” Id. § 501.2041(1)(f).
“Journalistic enterprises”: A social-media platform may not “censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast.” Id. § 501.2041(2)(j). The term “journalistic enterprise” is defined broadly to include any entity doing business in Florida. [11] that either (1) publishes in excess of 100,000 words online and has at least 50,000 paid subscribers or 100,000 monthly users, (2) publishes 100 hours of audio or video online and has at least 100 million annual viewers, (3) operates a cable channel that provides more than 40 hours of content per week to more than 100,000 cable subscribers, or (4) operates under an FCC broadcast license. Id. § 501.2041(1)(d). The term “censor” is also defined broadly to include not only actions taken to “delete,” “edit,” or “inhibit the publication of” content, but also any effort to “post an addendum to any content or material.” Id. § 501.2041(1)(b). The only exception to this provision’s prohibition is for “obscene” content. Id. § 501.2041(2)(j).
Consistency: A social-media platform must “apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform.” Id. § 501.2041(2)(b). The Act does not define the term “consistent.”
That is, the Act leaves it up to the Florida courts (not federal) to define the term “consistent”. Does it delegate too much to judges? No, I think.
30-day restriction: A platform may not make changes to its “user rules, terms, and agreements . . . more than once every 30 days.” Id. § 501.2041(2)(c).
User opt-out: A platform must “categorize” its post-prioritization and shadow-banning algorithms and allow users to opt out of them; for users who opt out, the platform must display material in “sequential or chronological” order. Id. [p. 12] § 501.2041(2)(f). The platform must offer users the opportunity to opt out annually. Id. § 501.2041(2)(g). Disclosure Obligations
This is a really important rule. It is simple to comply with, and frees an aware user from being manipulated by the platform.
Standards: A social-media platform must “publish the standards, including detailed definitions, it uses or has used for determining how to censor, deplatform, and shadow ban.” Id. § 501.2041(2)(a).
Rule changes: A platform must inform its users “about any changes to” its “rules, terms, and agreements before implementing the changes.” Id. § 501.2041(2)(c).
View counts: Upon request, a platform must provide a user with the number of others who viewed that user’s content or posts. Id. § 501.2041(2)(e).
The big thing here is that presumably the platform must provide a TRUE number of viewers, and not include bots. The statute should have mentioned bots— I don’t know if it did.
Candidate free advertising: Platforms that “willfully provide[] free advertising for a candidate must inform the candidate of such in-kind contribution.” Id. § 106.072(4).
Ah— what this refers to, I think, is if a platform gives a candidate’s ad or his personal tweets high priority like an ad, they must tell the candidate the value; that is, the amount an ordinary advertiser would pay for that. This will be fleshed out by Florida state regulations.
Explanations: Before a social-media platform deplatforms, censors, or shadow-bans any user, it must provide the user with a detailed notice. Id. § 501.2041(2)(d). In particular, the notice must be in writing and be delivered within 7 days, and must include both a “thorough rationale explaining the reason” for the “censor[ship]” and a “precise and thorough explanation of how the social media platform became aware” of the content that triggered its decision. Id. § 501.2041(3). (The notice requirement doesn’t apply “if the censored content or material is obscene.” Id. § 501.2041(4).)
[p. 13]
The Explanations part of the statute was written poorly. Regulations could fill out the meaning of “thorough rationale”, etc., but it might have been better to put more detail here.
User-Data Requirement
Data access: A social-media platform must allow a deplatformed user to “access or retrieve all of the user’s information, content, material, and data for at least 60 days” after the user receives notice of deplatforming. Id. § 501.2041(2)(i).
Enforcement of § 106.072—which contains the candidate deplatforming provision—falls to the Florida Elections Commission, which is empowered to impose fines of up to $250,000 per day for violations involving candidates for statewide office and $25,000 per day for those involving candidates for other offices. Id. § 106.072(3). Section 501.2041—which contains S.B. 7072’s remaining provisions—may be enforced either by state governmental actors or through civil suits filed by private parties. Id. § 501.2041(5), (6). Private actions under this section can yield up to $100,000 in statutory damages per claim, actual damages, punitive damages, equitable relief, and, in some instances, attorneys’ fees. Id. § 501.2041(6).
How big are the statutory damages? That’s important in look at a law’s legality, especially when private actors enforce it and can bring suit for profit.
C
The plaintiffs here—NetChoice and the Computer & Communications Industry Association (together, “NetChoice”)—are trade associations that represent internet and social-media companies like Facebook, Twitter, Google (which owns YouTube), and TikTok. They sued the Florida officials charged with enforcing S.B. 7072 under 42 U.S.C. § 1983. In particular, they sought to
[p. 14]
enjoin enforcement of §§ 106.072 and 501.2041 on a number of grounds, including, as relevant here, 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 NetChoice’s motion and preliminarily enjoined enforcement of §§ 106.072 and 501.2041 in their entirety. The court held that the provisions that impose liability for platforms’ decisions to remove or deprioritize content are likely preempted by 47 U.S.C. § 230(c)(2), which states that “[n]o provider or user of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
Here, the argument will be that “otherwise objectionable” means “anything at all that the platform objects to”. That, of course, makes all the other adjectives superfluous, if you read it that way, and, in fact, means that the whole sentence could have been written as “no provider can be sued for restricting access.”
Moreover, Big Tech says “material that the provider or user considers to be obscene, etc.” having the words “considers to be” means that it’s totally subjctive, up to the provider. Again, this would make the entire section void of meaning. If Twitter bans me for being Republican, they could just say, “We consider Republican tax plans to be obscene; their tariff policy to be lewd, and their FDA regulations to be lascivious”.
So what DO these phrases mean? I’d like to do some legal research to see how they are used in other statutes, but here’s a common-sense approach. First, “otherwise objectionable” should be read as “etcetera”, since it is at the end of a long list. It refers to anything else that seems to fit with the “unordered set” of {Lewd, Lascivious, Harassing,…}. A reasonable man can say what fits; many things (such as bad tax policy) obviously do not fit.
How about “material that the provider or user considers to be obscene”? This is confusing, and poor drafting, probably intentionally ambiguous so as to get the statute passed by a majority vote. Read literally, it would mean material that either the provider or any one user considers to be obscene. It doesn’t make sense to make it that purely subjective, though. Take a look at the context: “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene”. Notice “in good faith”. We can’t just have the provider claiming that he considers Republican tax policy to be obscene. We all know he’s lying if he says that. He doesn’t really believe it. No, what this means is that the provider gets some leeway if he gets it wrong and restricts something that he considers obscene, but there’s some grounds for that belief, even if the court decides it actually *is* obscene.
On NetChoice’s free-speech challenge, the district court held that the Act’s provisions implicated the First Amendment because they restrict platforms’ constitutionally protected exercise of “editorial judgment.” The court then applied strict First Amendment scrutiny because it concluded that some of the Act’s provisions were content-based and, more broadly, because it found that the entire bill was motivated by the state’s viewpoint-based purpose to defend conservatives’ speech from perceived liberal “big tech” bias: “This viewpoint-based motivation, without more, subjects the legislation to strict scrutiny, root and branch.” Doc. 113 at 23–26.
A viewpoint-based purpose is OK, in itself. The State could pass a statute limiting campaign contributions even if the intent of most of the legislature was to help Democrats, so long as there is a legitimate state interest too. But if there is such a purpose on the part of some of the statute’s supporters, courts will apply “strict scrutiny”. I *think* that’s how con law works.
The court held that the Act’s provisions “come nowhere [p. 15] close” to surviving strict scrutiny because, it said, “leveling the playing field” for speech is not a legitimate state interest,
??? No. Of course leveling the playing field for speech is a legitimate state interest. The only question is what means the state can use to try to ensure that all voices are heard.
the provisions aren’t narrowly tailored, and the State hadn’t even argued that the provisions could survive such scrutiny. Id. at 27. The court further noted that even if more permissive intermediate scrutiny applied, the provisions wouldn’t survive because they don’t meet the narrow-tailoring requirement and instead “seem designed not to achieve any governmental interest but to impose the maximum available burden on the social media platforms.” Id. at 28.
No, not at all. This isn’t like requiring social media platforms to burn money. It’s more like imposing taxes on them— harm to them, but benefit for the State. Each of the State’s rules has a clear purpose; it’s not just to make Big Tech fill out forms for the sake of filling out forms, as so much government regulation seems to be.
The court concluded that the plaintiffs easily met the remaining requirements for a preliminary injunction.
I wish courts would give more attention to the other three requirements than they do. A preliminary injunction is not a permanent injunction.
The State appealed. Before us, the State first argues that the plaintiffs are unlikely to succeed on their preemption challenge because some applications of the Act are consistent with § 230. Second, and more importantly for our purposes, the State contends that S.B. 7072 doesn’t even implicate—let alone violate—the First Amendment because the platforms aren’t engaged in protected speech. Rather, the State asserts that the Act merely requires platforms to “host” third-parties’ speech, which, it says, they may constitutionally be compelled to do under two Supreme Court decisions—PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), and Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006). Alternatively, the State says, the Act doesn’t trigger First Amendment scrutiny because it reflects the State’s permissible decision to treat social-media platforms like “common carriers.”
[p. 15]
That’s a fair summary of the State’s argument, probably. The State ought also to have argued on “balancing the equities” and “public interest”, but maybe it neglected those points. And maybe the State *did* argue Big Tech had no “irreparable harm”, but that’s a bad argument.
NetChoice responds that platforms’ content-moderation decisions—i.e., their decisions to remove or deprioritize posts or deplatform users, and thereby curate the material they disseminate— are “editorial judgments” that are protected by the First Amendment under longstanding Supreme Court precedent, including Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986), Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622 (1994), and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). According to NetChoice, strict scrutiny applies to the entire law “several times over” because it is speaker-, content-, and viewpoint-based. Moreover, and in any event, NetChoice says, the law fails any form of heightened scrutiny because there is no legitimate state interest in equalizing speech and because the law isn’t narrowly tailored. NetChoice briefly defends the district court’s preemption holding, but focuses on the First Amendment issues because they fully dispose of the case and because, it contends, a First Amendment violation is a quintessential irreparable injury for injunctive-relief purposes.
That’s a fair summary of Big Tech’s argument.
D
“We review the grant of a preliminary injunction for abuse of discretion, reviewing any underlying legal conclusions de novo and any findings of fact for clear error.” Gonzalez v. Governor of Ga., 978 F.3d 1266, 1270 (11th Cir. 2020). Ordinarily, “[a] district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits;
[p. 17]
(2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). Likelihood of success on the merits “is generally the most important” factor. Gonzalez, 978 F.3d at 1271 n.12 (quotation marks omitted).
All four factors have to be included, even if likelihood of success on the merits is generally important. The 7th Circuit used the equation approach that quantifies what courts are supposed to be thinking about, but I guess the 11th Circuit doesn’t— yet. The equation approach helps with the fact that even if success on the merits is likely, that can be outweighed if one party’s irreparable injury in the period till a permanent injunction is decided on or not is much bigger than the other’s. Here, that’s probably not decisive, but if the likelihood of success is around 50%, it would be.
* * *
We will train our attention on the question whether NetChoice has shown a substantial likelihood of success on the merits of its First Amendment challenge to Fla. Stat. §§ 106.072 and 501.2041. Because we conclude that the Act’s content-moderation restrictions are substantially likely to violate the First Amendment, and because that conclusion fully disposes of the appeal, we needn’t reach the merits of the plaintiffs’ preemption challenge.4
[p. 18]
Hmm… It’s good that an appellate Court doesn’t bother with superfluous reasoning (a trial court has to line things up for appeal, so it’s different). But the usual rule is to avoid deciding on constitutional grounds if a case can be decided on more mundane statutory grounds. I guess federal pre-emption is kind of constitutional too, but mainly it’s about construing the federal statute. (Look at footnote 4—- the Court does discuss what I just said, but unsatisfactorily.)
Here, though, there’s another wrinkle— it’s a preliminary injunction, so all that’s needed is “a” “substantial likelihood” of winning on the merits.
That brings to mind something else. How can all these preliminary injunction cases be binding precedent? They aren’t saying, “This is the law”; they’re saying, “There’s a substantial likelihood this is the law.” I guess maybe we have a legal fiction here— “substantial likelihood” really means “we’ve decided 100%, and we’re not *really* looking at the other 3 preliminary injunction criteria”.
In assessing whether the Act likely violates the First Amendment, we must initially consider whether it triggers First Amendment scrutiny in the first place—i.e., whether it regulates “speech” within the meaning of the Amendment at all. See Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6 F.4th 1247, 1254 (11th Cir. 2021). In other words, we must determine whether social-media platforms engage in First-Amendment-protected activity.
I just had a thought on this. Suppose Twitter’s arrangement of the postings you see in your feed is “speech” because it’s creative activity, the arranging and choice of the postings. In that case, wouldn’t Twitter also have copyright over it? They wouldn’t have copyright over individual posts, maybe, but they would over the collection. But perhaps that is absurd. If it is, it is an argument against Twitter having engaged in editorial judgement.
I see that Twitter’s user agreement does let the person who posts keep any copyright rights he may have over his post (it may be that something so short doesn’t get copyright, a separate question). Consuelo Reinberg (2009) wrote a very good article on how copyright law applies to Twitter.
If they do, we must then proceed to determine what level of scrutiny applies and whether the Act’s provisions survive that scrutiny. See Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11 F.4th 1266, 1291 (11th Cir. 2021) (“FLFNB II”).
Aha: I think courts call the second case in time “John Doe II” even if it is the first case mentioned in the opinion. Confusing, but is there a better way to style it?
For reasons we will explain in the balance of the opinion, we hold as follows: (1) S.B. 7072 triggers First Amendment scrutiny because it restricts social-media platforms’ exercise of editorial judgment and requires them to make certain disclosures; (2) strict scrutiny applies to some of the Act’s content-moderation restrictions while intermediate scrutiny applies to others; (3) the Act’s disclosure provisions should be assessed under the standard articulated in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); (4) it is substantially likely that the Act’s content-moderation restrictions will not survive even intermediate scrutiny; (5) it is also substantially likely that the requirement that platforms provide a “thorough rationale” for each content-moderation decision will not survive under Zauderer; (6) it is not substantially likely that the Act’s remaining disclosure provisions are unconstitutional; and (7) the preliminary-injunction factors favor enjoining
[p. 19]
the provisions of the Act that are substantially likely to be unconstitutional.
II
A
Social-media platforms like Facebook, Twitter, YouTube, and TikTok are private companies with First Amendment rights, see First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 781–84 (1978), and when they (like other entities) “disclos[e],” “publish[],” or “disseminat[e]” information, they engage in “speech within the meaning of the First Amendment.” Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011) (quotation marks omitted). More particularly, when a platform removes or deprioritizes a user or post, it makes a judgment about whether and to what extent it will publish information to its users—a judgment rooted in the platform’s own views about the sorts of content and viewpoints that are valuable and appropriate for dissemination on its site. As the officials who sponsored and signed S.B. 7072 recognized when alleging that “Big Tech” companies harbor a “leftist” bias against “conservative” perspectives, the companies that operate social-media platforms express themselves (for better or worse) through their content-moderation decisions. When 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.
[p. 20]
Laws that restrict platforms’ ability to speak through content moderation therefore trigger First Amendment scrutiny. Two lines of precedent independently confirm this commonsense conclusion:
The Court may be correct, but it’s not at all common sense— the man on the street would not see that letting Big Tech censor conservatives advances Free Speech without a lot of explanation.
first, and most obviously, decisions protecting exercises of “editorial judgment”; and second, and separately, those protecting inherently expressive conduct.
1
We’ll begin with the editorial-judgment cases. The Supreme Court has repeatedly held that a private entity’s choices about whether, to what extent, and in what manner it will disseminate speech—even speech created by others—constitute “editorial judgments” protected by the First Amendment.
Miami Herald Publishing Co. v. Tornillo is the pathmarking case. There, the Court held that a newspaper’s decisions about what content to publish and its “treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment” that the First Amendment was designed to safeguard. 418 U.S. at 258. Florida had passed a statute requiring any paper that ran a piece critical of a political candidate to give the candidate equal space in its pages to reply. Id. at 243.
The newspaper articles were written by the newspaper. Does this matter?
Would have been good to include the year of the case.
Despite the contentions (1) that economic conditions had created “vast accumulations of unreviewable power in the modern media empires” and (2) that those conditions had resulted in “bias and manipulative reportage” and massive barriers to entry, the Court concluded that the state’s attempt to compel the paper’s editors to
[p. 21]
“publish that which reason tells them should not be published is unconstitutional.” Id. at 250–51, 256 (quotation marks omitted). Florida’s “intrusion into the function of editors,” the Court held, was barred by the First Amendment. Id. at 258.
The Court subsequently extended Miami Herald’s protection of editorial judgment beyond newspapers. In Pacific Gas & Electric Co. v. Public Utilities Commission of California, the Court invalidated a state agency’s order that would have required a utility company to include in its billing envelopes the speech of a third party with which the company disagreed. 475 U.S. at 4, 20 (plurality op.). A plurality of the Court reasoned that the concerns underlying Miami Herald applied to a utility company in the same way that they did to the institutional press. Id. at 11–12. The challenged order required the company “to use its property as a vehicle for spreading a message with which it disagree[d]” and therefore was subject to (and failed) strict First Amendment scrutiny. Id. at 17– 21.
Question: did the Company in Pacific Gas include in its billing envelope its own political speech? Yes. It’s a bad opinion and should be overruled.
So too, in Turner Broadcasting Systems, Inc. v. FCC, the Court held that cable operators—companies that own cable lines and choose which stations to offer their customers—“engage in and transmit speech.” 512 U.S. at 636. “[B]y exercising editorial discretion over which stations or programs to include in [their] repertoire,” the Court said, they “seek to communicate messages on a wide variety of topics and in a wide variety of formats.” Id. (quotation marks omitted); see also Ark. Educ. TV Comm’n v. Forbes, 523 U.S. 666, 674 (1998) (“Although programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts.”). Because cable operators’ decisions about which channels to transmit were protected speech, the challenged regulation requiring operators to carry broadcast-TV channels triggered First Amendment scrutiny. 512 U.S. at 637. 5
Another dubious decision. There is a public interest in getting citizens to follow the news.
Most recently, the Court applied the editorial-judgment principle to a parade organizer in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, explaining that parades (like newspapers and cable-TV packages) constitute protected expression. 515 U.S. at 568. The Supreme Judicial Court of Massachusetts had attempted to apply the state’s public-accommodations law to require the organizers of a privately run parade to allow a gay-pride group to march. Id. at 564. Citing Miami Herald, and using words equally applicable here, the Court observed that “the presentation of an edited compilation of speech generated by other persons . . . fall[s] squarely within the core of First Amendment security” and that the “selection of contingents to make a parade is entitled to similar protection.” Id. at 570. The Court concluded that it didn’t matter that the state was attempting to apply a public-accommodations statute because “once the expressive character of both the parade and the marching [gay-rights] contingent [was] understood, [p. 23] it bec[ame] apparent that the state courts’ application of the statute had the effect of declaring the [parade] sponsors’ speech itself to be the public accommodation,” which “violates the fundamental rule of . . . the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573. Nor did it matter, the Court explained, that the parade didn’t produce a “particularized message”: The parade organizer’s decision to “exclude a message it did not like from the communication it chose to make” was “enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another”—a choice “not to propound a particular point of view” that is “presumed to lie beyond the government’s power to control.” Id. at 574–75.
A parade is not at all open to the public, nothing like a common carrier. EVERYONE has to apply to be in the parade, and is checked out by a human, not an algorithm. With Twitter, you get in automatically— they take all comers— and are kicked out only if they decide they don’t like you.
Together, Miami Herald, Pacific Gas, and particularly Turner and Hurley establish that a private entity’s decisions about whether, to what extent, and in what manner to disseminate third party-created content to the public are editorial judgments protected by the First Amendment. For reasons we will explain, social media platforms’ content-moderation decisions constitute the same sort of editorial judgments and thus trigger First Amendment scrutiny.
2
Separately, we might also assess social-media platforms’ content-moderation practices against our general standard for what constitutes inherently expressive conduct protected by the First Amendment. We recently explained that standard in Coral Ridge Ministries, Inc. v. Amazon.com, Inc.:
In determining whether conduct is expressive, we ask whether the reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message. If we find that the conduct in question is expressive, any law regulating that conduct is subject to the First Amendment.
6 F.4th at 1254 (cleaned up).
Right. Does the reasonable man believe that because Twitter allows obscenities, or pro-Democrat posts, or pro-Republican posts, that it is pro-obscenity, pro-Democrat, and pro-Republican? Of course not.
In Coral Ridge, a Christian ministry and media organization sued Amazon.com, alleging that Amazon’s decision to exclude the organization from the company’s “AmazonSmile” charitable-giving program—based on the Southern Poverty Law Center’s designation of the organization as a “hate group”—constituted religious discrimination in violation of Title II of the Civil Rights Act of 1964. Id. at 1250–51. We held that “Amazon’s choice of what charities are eligible to receive donations through AmazonSmile” was expressive conduct—and notably, in so holding, we analogized Amazon’s determination to the parade organizer’s decisions in Hurley about which groups to include in the march. Id. at 1254–55. “A reasonable person would interpret” Amazon’s exclusion of certain charities from the program based on the SPLC’s hate-group designations, we said, “as Amazon conveying ‘some sort of message’ about the organizations it wishes to support.” Id. (quoting Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235, 1240 (11th Cir. 2018) (“FLFNB I”)).
Coral Ridge was correctly decided. Amazon only includes certain charities in its program, and every charitable giving program I’ve ever heard of is limited to particular charities. Amazon has the right to rely on grifters like the SPLC (add link), or to exclude Christian or Moslem or Black organizations altogether. Note my examples. If the Court finds against Florida, its logic also means that Twitter has the right to exclude anybody expressing Christian or Moslem opinions; and, indeed, Twitter could make all members sign their agreement with racial segregation and their belief in white supremacy. The anti-discrimination laws would prevent them from excluding Christians, Moslems, or Blacks, but they would not prevent them from exercising their supposed 1st Amendment right to exclude Christians, Moslems, or Blacks who might post Christian, Moslem, or pro-Black opinions.
The Coral Ridge case built on our earlier decision in Fort Lauderdale Food Not Bombs. That case concerned a non-profit organization that distributed free food in a city park to communicate its view that society should end hunger and poverty by redirecting resources away from the military. 901 F.3d at 1238–39. When the city enacted an ordinance that would have prohibited distributing food in parks without prior authorization, the organization sued, arguing that its food-sharing events constituted inherently expressive conduct protected by the First Amendment. Id. at 1239–40. We held that given the surrounding context, the organization’s food-sharing events would convey “some sort of message” to the reasonable observer—and were therefore “‘a form of protected expression.’” Id. at 1244–45 (quoting Spence v. Washington, 418 U.S. 405, 410 (1974)).
The Fort Lauderdale case is very fact-specific. Ordinarily, a group giving out food is trying to help people, not to send a message. But maybe it was different here.
3
Whether we assess social-media platforms’ content-moderation activities against the Miami Herald line of cases or against our own decisions explaining what constitutes expressive conduct, the result is the same: Social-media platforms exercise editorial judgment that is inherently expressive. When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity.
Social-media platforms’ content-moderation decisions are, we think, closely analogous to the editorial judgments that the Supreme Court recognized in Miami Herald, Pacific Gas, Turner, and Hurley. Like parade organizers and cable operators, social-media companies are in the business of delivering curated compilations of speech created,
Big difference: Twitter is actually in the business of hosting posts. Separately— which is very important— it is in the business of curating priority of posts. Priority, not existence. Some users want the curation, some would rather not have it. Twitter uses its prioritizing to secretly censor the feed a user receives. He doesn’t know it’s political censorship, but it is.
in the first instance, by others. Just as the parade organizer exercises editorial judgment when it refuses to include in its lineup groups with whose messages it disagrees,
Everybody on the parade route sees all the floats. It’s not at all like Twitter.
and just as a cable operator might refuse to carry a channel that produces content it prefers not to disseminate,
In the cable case, wasn’t it that the cable operator didn’t want to PAY for the broadcast channels? Maybe not. Check on that.
social-media platforms regularly make choices “not to propound a particular point of view.” Hurley, 515 U.S. at 575. Platforms employ editorial judgment to convey some messages but not others and thereby cultivate different types of communities that appeal to different groups.
No, that’s stupid. Nobody joins Twitter because they think they’re joining an affinity group. Some people pretend to care that somewhere on Twitter a conservative is getting to speak to conservatives—- and I guess they DO want to shut that down— but it’s no different from them wanting to shut down conservatives OFF OF Twitter who speak to conservatives. They want to destroy their enemies; it’s not that they’re afraid they might have to listen to their enemies. See the Old Lady in the Attic joke at https://www.rasmusen.org/rasmapedia/index.php?title=Jokes#The_Old_Lady_Looking_from_the_Attic.
A few examples:
• YouTube seeks to create a “welcoming community for viewers” and, to that end, prohibits a wide range of content, including spam, pornography, terrorist incitement, election and public-health misinformation, and hate speech.6
The last four are not like the first two. The first two are an obnoxious bother. They are offensive or time-consuming. The last four are merely stupid and the reader can easily skip them. Any reader who is *offended* by them needs to have his head examined.
• Facebook engages in content moderation to foster “authenticity,” “safety,” “privacy,” and “dignity,” and accordingly, removes or adds warnings to a wide range of content—for example, posts that include what it considers to be hate speech, fraud or deception, nudity or sexual activity, and public-health misinformation.7
Misinformation and “hate speech” are not the same as the others. Criminal use naturally is a prohibited use of the platform, not for other users' sake so much as the platform’s criminal liability as an accessory.
• Twitter aims “to ensure all people can participate in the public conversation freely and safely” by removing content, among other categories, that it views as embodying hate, glorifying violence, promoting suicide, or containing election misinformation.8
To state it is to see how ridiculous the claim is. Judge Newsom should be ashamed of this one.
• Roblox, a gaming social network primarily for children, prohibits “[s]ingling out a user or group for ridicule or abuse,” any sort of sexual content, depictions of and support for war or violence, and any discussion of political parties or candidates.9
• Vegan Forum allows non-vegans but “will not tolerate members who promote contrary agendas.”10 [p. 28]
And to be clear, some platforms exercise editorial judgment to promote explicitly political agendas. On the right, ProAmericaOnly promises “No Censorship | No Shadow Bans | No BS | NO LIBERALS.”11 And on the left, The Democratic Hub says that its “online community is for liberals, progressives, moderates, independent[s] and anyone who has a favorable opinion of Democrats and/or liberal political views or is critical of Republican ideology.”12
These are platforms with limited audiences. We’ve never heard of them I guess the Florida law must cover them (is there no size exception?), but check on that. Are they even commercial?
All such 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.
Separately, but similarly, platforms’ content-moderation activities qualify as First-Amendment-protected expressive conduct under Coral Ridge and FLFNB I. A reasonable person would likely infer “some sort of message” from, say, Facebook removing hate speech or Twitter banning a politician. Indeed, unless posts and users are removed randomly, those sorts of actions necessarily convey some sort of message—most obviously, the platforms’ disagreement with or disapproval of certain content, viewpoints, or users. Here, for instance, the driving force behind S.B. 7072 seems to have been a perception (right or wrong) that some platforms’
[p. 29]
content-moderation decisions reflected a “leftist” bias against “conservative” views—which, for better or worse, surely counts as expressing a message. That observers perceive bias in platforms’ content-moderation decisions is compelling evidence that those decisions are indeed expressive.
True, they’re expressive. The issue here is whether this kind of expression is protected by the 1st Amendment or otherwise. When a restaurant refuses to serve blacks, that is very expressive. But it is not protected.
In an effort to rebut this point, the State responds that because the vast majority of content that makes it onto social-media platforms is never reviewed—let alone removed or deprioritized— platforms aren’t engaged in conduct of sufficiently expressive quality to merit First Amendment protection. See Reply Br. of Appellant at 16. With respect, the State’s argument misses the point. The “conduct” that the challenged provisions regulate—what this entire appeal is about—is the platforms’ “censorship” of users’ posts—i.e., the posts that platforms do review and remove or deprioritize.13 The question, then, is whether that conduct is expressive. For reasons we’ve explained, we think it unquestionably is.14
The State made a bad error if it based its argument on that claim. If it did, it was admitting that if Twitter openly banned Republicans and said it was doing so to make a political point, it would be fine for Twitter to do that.
B
In the face of the editorial-judgment and expressive-conduct cases, the State insists that S.B. 7072 doesn’t even implicate, let alone violate, the First Amendment.
Right.
The State’s first line of [p. 31] argument relies on two cases—PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), and Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (“FAIR”)—in which the Supreme Court upheld government regulations that effectively compelled private actors to “host” others’ speech. The State’s second argument seeks to evade—or at least minimize—First Amendment scrutiny by labeling social-media platforms “common carriers.” We find neither argument convincing.
B-1
We begin with the “hosting” cases. The first decision to which the State points, PruneYard, is readily distinguishable. There, the Supreme Court affirmed a state court’s decision requiring a privately owned shopping mall to allow members of the public to circulate petitions on its property. 447 U.S. at 76–77, 88. In that case, though, the only First Amendment interest that the mall owner asserted was the right “not to be forced by the State to use [its] property as a forum for the speech of others.” Id. at 85.
Exactly as in the present case. Or, more accurately, the First Amendment interest is the same, whether asserted or not. Would the Newsom Court say that if a shopping mall case comes up again but asserts a 1st Amendment right, the shopping mall will win?
The Supreme Court’s subsequent decisions in Pacific Gas and Hurley distinguished and cabined PruneYard. The Pacific Gas plurality explained that “[n]otably absent from PruneYard was any concern that access to this area might affect the shopping center owner’s exercise of his own right to speak: the owner did not even allege that he objected to the content of the pamphlets.”
Of course, in the present case, there’s no concern of that either— Twitter is not hindered from speaking by allowing other people to speak. There’s enough room on its servers for both.
475 U.S. at 12 (plurality op.); see also id. at 24 (Marshall, J., concurring in the judgment) (“While the shopping center owner in PruneYard wished to be free of unwanted expression, he nowhere alleged that his own expression was hindered in the slightest.”); Hurley, 515 U.S. at 580 (noting that the “principle of speaker’s autonomy was simply not threatened in” PruneYard). Because NetChoice asserts that S.B. 7072 interferes with the platforms’ own speech rights by forcing them to carry messages that contradict their community standards and terms of service, PruneYard is inapposite.
“Because NetChoice asserts”? The Court was laughing at the State earlier for saying that the State labelled Twitter a common carrier. State laws label things oddly all the time. But should we let a private party get away with calling a cow a dog?
The Court is using the fallacy of equivocation. In legal language, to assert a right is to take a right you have and claim a remedy for its violation. In everyday language, to assert a right is to claim you have the right. Or, perhaps it’s petitio principii. Netchoice is claiming a remedy, but we have not established that it has the right.
FAIR may be a bit closer, but it, too, is distinguishable. In that case, the Supreme Court upheld a federal statute—the Solomon Amendment—that required law schools, as a condition to receiving federal funding, to allow military recruiters the same access to campuses and students as any other employer. 547 U.S. at 56. The schools, which had restricted recruiters’ access because they opposed the military’s “Don’t Ask, Don’t Tell” policy regarding gay servicemembers, protested that requiring them to host recruiters and post notices on their behalf violated the First Amendment. Id. at 51.
Just like the present case. Twitter says if it lets .01% of its platform be used by conservatives, people will think Twitter approves of conservatives.
Here’s an analogy. Suppose Texas has a law prohibiting Twitter from punching conservatives in the fact (in fact, Texas does have such a law). Twitter would argue that this prevents it from expressing its political opinions via punching people.
But the Court held that the law didn’t implicate the First Amendment because it “neither limit[ed] what law schools may say nor require[d] them to say anything.” Id. at 60. In so holding, the Court rejected two arguments for why the First Amendment should apply—(1) that the Solomon Amendment unconstitutionally required law schools to host the military’s speech, and (2) that it restricted the law schools’ expressive conduct. Id. at 60–61. With respect to the first argument, the Court distinguished Miami Herald, Pacific Gas, and Hurley on the ground that, in those cases, “the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Id. at 63. The Solomon Amendment’s requirement that schools host military recruiters did “not affect the law schools’ speech,” the Court said, “because the schools [were] not speaking when they host[ed] interviews and recruiting receptions”: Recruiting activities, the Court reasoned, simply aren’t “inherently expressive”—they’re not speech—in the way that editorial pages, newsletters, and parades are. Id. at 64. Therefore, the Court concluded, “accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.” Id. Nor did the Solomon Amendment’s requirement that schools send notices on behalf of military recruiters unconstitutionally compel speech, the Court held, as it was merely incidental to the law’s regulation of conduct. Id. at 62.
Same with Twitter. The law regulates their conduct as far as kicking off conservative users.
The FAIR Court also rejected the law schools’ second argument—namely, that the Solomon Amendment restricted their inherently expressive conduct. The schools’ refusal to allow military recruiters on campus was expressive, the Court emphasized, “only because [they] accompanied their conduct with speech explaining it.”
Same here. How would we know that Twitter was expressing its political opinions except that it says kicking off conservatives is expressing its opinions? It is only because Twitter “accompanied their conduct with speech explaining it” in this Lawsuit that we know the ban is expressive.
Id. at 66. In the normal course, the Court said, an observer “who s[aw] military recruiters interviewing away from the law school [would have] no way of knowing” whether the school was expressing a message or, instead, the school’s rooms just happened to be full or the recruiters just preferred to interview elsewhere. Id. Because “explanatory speech” was necessary to understand the message conveyed by the law schools’ conduct, the Court concluded, that conduct wasn’t “inherently expressive.” Id.
Even so, normally you wouldn’t know that The Babylon Bee not being on Twitter was because they hadn’t bothered to sign up. It’s only because Twitter is suing here in this case that we know it’s Twitter’s deeply held political opinions.
FAIR isn’t controlling here because social-media platforms warrant First Amendment protection on both of the grounds that the Court held that law-school recruiting services didn’t.
First, S.B. 7072 interferes with social-media platforms’ own “speech” within the meaning of the First Amendment. Social-media platforms, unlike law-school recruiting services, are in the business of disseminating curated collections of speech. A social-media platform that “exercises editorial discretion in the selection and presentation of” the content that it disseminates to its users “engages in speech activity.” Ark. Educ. TV Comm’n, 523 U.S. at 674; see Sorrell, 564 U.S. at 570 (explaining that the “dissemination of information” is “speech within the meaning of the First Amendment”);
If simple “dissemination of information” is “speech”, then Federal Express could refuse to carry envelopers mailed by Blacks or Republicans.
Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (“If the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category.” (cleaned up)).
No, it’s easy. Saying something, or writing something, is speech. Merely carrying the piece of paper somebody else wrote, or transmitting it in wires, is not, unless the carrier or transmitter adds, “And I agree!”.
Just as the must-carry provisions in Turner “reduce[d] the number of channels over which cable operators exercise[d] unfettered control” and therefore triggered First Amendment scrutiny, 512 U.S. at 637, S.B. 7072’s content-moderation restrictions reduce the number of posts over which platforms can exercise their editorial judgment.
That seems a bit weird, though maybe it’s correct. The idea is that if Twitter can’t ban conservatives, it can’t say as much. But of course it’s transmitting the same amount of leftwing posts, not less. The cable channels only had a certain amount of channels they could carry. Twitter isn’t limited like that.
Because a social-media platform itself “spe[aks]” by curating and delivering compilations of others’ speech—speech that may include messages ranging from Facebook’s promotion of authenticity, safety, privacy, and dignity to ProAmericaOnly’s “No BS | No LIBERALS”—a law that requires the platform to disseminate speech with which it disagrees interferes with its own message and thereby implicates its First Amendment rights.
Second, social-media platforms are engaged in inherently expressive conduct of the sort that the Court found lacking in FAIR. As we were careful to explain in FLFNB I, FAIR “does not mean that conduct loses its expressive nature just because it is also accompanied by other speech.” 901 F.3d at 1243–44. Rather, “[t]he critical question is whether the explanatory speech is necessary for the reasonable observer to perceive a message from the conduct.” Id. at 1244. And we held that an advocacy organization’s food-sharing events constituted expressive conduct from which, “due to the context surrounding them, the reasonable observer would infer some sort of message”—even without reference to the words “Food Not Bombs” on the organization’s banners. Id. at 1245. Context, we held, is what differentiates “activity that is sufficiently expressive [from] similar activity that is not”—e.g., “the act of sitting down” from “the sit-in by African Americans at a Louisiana library” protesting segregation. Id. at 1241 (citing Brown v. Louisiana, 383 U.S. 131, 141–42 (1966)).
Unlike the law schools in FAIR, social-media platforms’ content-moderation decisions communicate messages when they remove or “shadow-ban” users or content. Explanatory speech isn’t “necessary for the reasonable observer to perceive a message from,” for instance, a platform’s decision to ban a politician or remove what it perceives to be misinformation. Id. at 1244. Such conduct—the targeted removal of users’ speech from websites whose primary function is to serve as speech platforms—conveys a message to the reasonable observer “due to the context surrounding” it. Id. at 1245; see also Coral Ridge, 6 F.4th at 1254. Given the context, a reasonable observer witnessing a platform remove a user or item of content would infer, at a minimum, a message of disapproval.15 Thus, social-media platforms engage in content moderation that is inherently expressive notwithstanding FAIR.
The same is true of a restaurant that doesn’t allows Blacks to enter. Back in the Civil Rights era, that was very obviously expressive conduct--- but restaurants didn’t get to cite the First Amendment and continue to discriminate.
* * *
The State asserts that Pruneyard and FAIR—and, for that matter, the Supreme Court’s editorial-judgment decisions—establish three “guiding principles” that should lead us to conclude that S.B. 7072 doesn’t implicate the First Amendment. We disagree.
The first principle—that a regulation must interfere with the host’s ability to speak in order to implicate the First Amendment— does find support in FAIR. See 547 U.S. at 64. Even so, the State’s argument—that S.B. 7072 doesn’t interfere with platforms’ ability to speak because they can still affirmatively dissociate themselves from the content that they disseminate—encounters two difficulties. As an initial matter, in at least one key provision, the Act defines the term “censor” to include “posting an addendum,” i.e., a disclaimer—and thereby explicitly prohibits the very speech by which a platform might dissociate itself from users’ messages.
The disclaimer part of the statute is easily severable. Strike it down.
Fla. Stat. § 501.2041(1)(b). Moreover, and more fundamentally, if the exercise of editorial judgment—the decision about whether, to what extent, and in what manner to disseminate third-party content—is itself speech or inherently expressive conduct, which we have said it is, then the Act does interfere with platforms’ ability to speak. See Pacific Gas, 475 U.S. at 10–12, 16 (plurality op.) (noting that if the government could compel speakers to “propound . . . messages with which they disagree,” the First Amendment’s protection “would be empty, for the government could require speakers to affirm in one breath that which they deny in the next”).
What does Newsom think about required warning labels on cigarette packages?
The State’s second principle—that in order to trigger First Amendment scrutiny a regulation must create a risk that viewers or listeners might confuse a user’s and the platform’s speech—finds little support in our precedent. Consumer confusion simply isn’t a prerequisite to First Amendment protection. In Miami Herald, for instance, even though no reasonable observer would have mistaken a political candidate’s statutorily mandated right-to-reply column for the newspaper reversing its earlier criticism, the Supreme Court deemed the paper’s editorial judgment to be protected. See 418 U.S. at 244, 258. Nor was there a risk of consumer confusion in Turner: No reasonable person would have thought that the cable operator there endorsed every message conveyed by every speaker on every one of the channels it carried, and yet the Court stated categorically that the operator’s editorial discretion was protected. See 512 U.S. at 636–37. Moreover, it seems to us that the State’s confusion argument boomerangs back around on itself: If a platform announces a community standard prohibiting, say, hate speech, but is then barred from removing or even disclaiming posts containing what it perceives to be hate speech, there’s a real risk that a viewer might erroneously conclude that the platform doesn’t consider those posts to constitute hate speech.
The State’s final principle—that in order to receive First Amendment protection a platform must curate and present speech in such a way that a “common theme” emerges—is similarly flawed. Hurley held that “a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech.” 515 U.S. at 569–70; see FLFNB I, 901 F.3d at 1240 (citing Hurley for the proposition that a “particularized message” isn’t required for conduct to qualify for First Amendment protection). Moreover, even if one could theoretically attribute a common theme to a parade, Turner makes clear that no such theme is required: It seems to us inconceivable that one could ascribe a common theme to the cable operator’s choice there to carry hundreds of disparate channels, and yet the Court held that the First Amendment protected the operator’s editorial discretion. 512 U.S. at 636.16
In short, the State’s reliance on PruneYard and FAIR and its attempts to distinguish the editorial-judgment line of cases are unavailing.
B-2
The State separately seeks to evade (or at least minimize) First Amendment scrutiny by labeling social-media platforms “common carriers.”17The crux of the State’s position, as expressed at oral argument, is that “[t]here are certain services that society determines people shouldn’t be required to do without,” and that [p. 41] this is “true of social media in the 21st century.” Oral Arg. at 18:37 et seq. For reasons we explain, we disagree.
At the outset, 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. Whatever the State’s position, we are unpersuaded.
It would be (a), I think.
B-2-a
The first version of the argument fails because, in point of fact, social-media platforms are not—in the nature of things, so to speak—common carriers. That is so for at least three reasons.
First, social-media platforms have never acted like common carriers.
Sure they have. They’ve accepted all comers to use their services, except for those that degraded the experience *too much* of other passengers or were committing crimes.
“[I]n the communications context,” common carriers are entities that “make a public offering to provide communications facilities whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing”—they don’t “make individualized decisions, in particular cases, whether and on what terms to deal.” FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979) (cleaned up).
Yep, that’s exactly what a platform does.
While it’s true that social-media platforms generally hold themselves open to all members of the public, they require users, as preconditions of access, to accept their terms of service and abide by their community standards.
No. No more than phone service.
In other words, Facebook is open to [p. 42] every individual if, but only if, she agrees not to transmit content that violates the company’s rules.
This begs the question, petitio principii. The Court is saying that because Twitter bans people, it isn’t a common carrier. Thus, a stagecoach or a train wouldn’t be a common carrier either if it banned Blacks or Republicans. Rather, Twitter has been an unregulated common carrier, and the State of Texas seeks to regulate it. Perhaps The Babylon Bee could have sued under the common law anyway—an interesting thought--- it just didn’t happen to do so.
Social-media users, accordingly, are not freely able to transmit messages “of their own design and choosing” because platforms make—and have always made—“individualized” content- and viewpoint-based decisions about whether to publish particular messages or users.
Second, Supreme Court precedent strongly suggests that internet companies like social-media platforms aren’t common carriers. While the Court has applied less stringent First Amendment scrutiny to television and radio broadcasters, the Turner Court cabined that approach to “broadcast” media because of its “unique physical limitations”—chiefly, the scarcity of broadcast frequencies. 512 U.S. at 637–39.
Here, we have a natural monopoly based on network externalities. I really must write on this. But I think some amici already did.
Instead of “comparing cable operators to electricity providers, trucking companies, and railroads—all entities subject to traditional economic regulation”—the Turner Court “analogized the cable operators [in that case] to the publishers, pamphleteers, and bookstore owners
OK. Which is Twitter more like, in economic terms, “electricity providers, trucking companies, and railroads” or “publishers, pamphleteers, and bookstore owners”. Twitter’s product, of course, is more like the second. But the product is not what’s relevant. In product, a hardware store selling home generators is like an electricity company, a truck dealership is like a trucking company, and a model railroad store is like a railroad. What matters are the economic characteristics—size, ease of substitution into another product, number of competitors, corporate organization vs. sole proprietorship, power over the lives of customers.
traditionally protected by the First Amendment.” U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 428 (D.C. Cir. 2017) (Kavanaugh, J., dissental); see Turner, 512 U.S. at 639. And indeed, the Court explicitly distinguished online from broadcast media in Reno v. American Civil Liberties Union, emphasizing that the “vast democratic forums of the Internet” have never been “subject to the type of government supervision and regulation that has attended the broadcast industry.”
How dare Judge Newsom defend the Lord of Tech’s attempt to shut down dissent by saying they are defending “the vast democratic forums of the Internet”. This is complete doublespeak, totally shameless. Newsom is no better than Orwell’s imaginary Big Brother in 1984
521 U.S. 844, 868–69 (1997). These precedents demonstrate that social-media platforms should be treated more like cable operators, which retain [p. 43] their First Amendment right to exercise editorial discretion, than traditional common carriers.
Finally, Congress has distinguished internet companies from common carriers. The Telecommunications Act of 1996 explicitly differentiates “interactive computer services”—like social-media platforms—from “common carriers or telecommunications services.” See, e.g., 47 U.S.C. § 223(e)(6) (“Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.”).
That’s completely irrelevant here. First, it just says “nothing in this section” shall treat interactive computer services as common carriers. It’s limited to “this section”. Second, it is absolutely routine for statutes to have their own special definitions, definitions which are different from the way terms are defined in other statutes. That’s why statutes usually have a “Definitions” section--- because they don’t mean to use the same definitions as in the other 100 statutes which use the same term.
And the Act goes on to provide protections for internet companies that are inconsistent with the traditional common-carrier obligation of indiscriminate service. In particular, it explicitly protects internet companies’ ability to restrict access to a plethora of material that they might consider “objectionable.”
That’s not contradictory to being a common carrier. If you smell too bad, the airplane doesn’t have to let you on. Indeed, since the statute says that for its purposes, Twitter is not a common carrier, the statute has to add some of the protections that common carriers ordinarily have in the common law, such as being able to exclude smelly customers.
Id. § 230(c)(2)(A). Federal law’s recognition and protection of social-media platforms’ ability to discriminate among messages—disseminating some but not others—is strong evidence that they are not common carriers with diminished First Amendment rights.
The list is section 230, which, notably, is NOT quoted here, shows the opposite. It’s just like the list of things common carriers can ban--- obscenity and such. I should quote 230 here.
STOPPED HERE, JUNE 13
b
If social-media platforms are not common carriers either in fact or by law, the State is left to argue that it can force them to become common carriers, abrogating or diminishing the First Amendment rights that they currently possess and exercise. Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier. Quite the contrary, if social-media platforms currently [p. 44] possess the First Amendment right to exercise editorial judgment, as we hold it is substantially likely they do, then any law infringing that right—even one bearing the terminology of “common carri[age]”—should be assessed under the same standards that apply to other laws burdening First-Amendment-protected activity. See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 825 (1996) (Thomas, J., concurring in the judgment in part and dissenting in part) (“Labeling leased access a common carrier scheme has no real First Amendment consequences.”);Cablevision Sys. Corp. v. FCC, 597 F.3d 1306, 1321–22 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (explaining that because video programmers have a constitutional right to exercise editorial discretion, “the Government cannot compel [them] to operate like ‘dumb pipes’ or ‘common carriers’ that exercise no editorial control”); U.S. Telecom Ass’n, 855 F.3d at 434 (Kavanaugh, J., dissental) (“Can the Government really force Facebook and Google . . . to operate as common carriers?”).
* * *
The State’s best rejoinder is that because large social-media platforms are clothed with a “public trust” and have “substantial market power,” they are (or should be treated like) common carriers. Br. of Appellants at 35–37; see Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 1226 (2021) (Thomas, J., concurring). These premises aren’t uncontroversial, but even if they’re true, they wouldn’t change our conclusion. The State doesn’t argue that market power and public importance are alone sufficient reasons to [p. 45] recharacterize a private company as a common carrier; rather, it acknowledges that the “basic characteristic of common carriage is the requirement to hold oneself out to serve the public indiscriminately.” Br. of Appellants at 35 (quoting U.S. Telecom. Ass’n v. FCC, 825 F.3d 674, 740 (D.C. Cir. 2016)); see Knight, 141 S. Ct. at 1223 (Thomas, J., concurring). The problem, as we’ve explained, is that social-media platforms don’t serve the public indiscriminately but, rather, exercise editorial judgment to curate the content that they display and disseminate.
The State seems to argue that even if platforms aren’t currently common carriers, their market power and public importance might justify their “legislative designation . . . as common carriers.” Br. of Appellants at 36; see Knight, 141 S. Ct. at 1223 (Thomas, J., concurring) (noting that the Court has suggested that common-carrier regulations “may be justified, even for industries not historically recognized as common carriers, when a business . . . rises from private to be a public concern” (quotation marks omitted)). That might be true for an insurance or telegraph company, whose only concern is whether its “property” becomes “the means of rendering the service which has become of public interest.” Knight, 141 S. Ct. at 1223 (Thomas, J., concurring) (quoting German All. Ins. Co. v. Lewis, 233 U.S. 389, 408 (1914)). But 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 [
p. 46] in the marketplace and hits it big. See Miami Herald, 418 U.S. at 251, 258. In short, because social-media platforms exercise—and have historically exercised—inherently expressive editorial judgment, they aren’t common carriers, and a state law can’t force them to act as such unless it survives First Amendment scrutiny.
C
With one exception, we hold that the challenged provisions of S.B. 7072 trigger First Amendment scrutiny either (1) by restricting social-media platforms’ ability to exercise editorial judgment or (2) by imposing disclosure requirements. Here’s a brief rundown.
S.B. 7072’s content-moderation restrictions all limit platforms’ ability to exercise editorial judgment and thus trigger First Amendment scrutiny. The provisions that prohibit deplatforming candidates (§ 106.072(2)), deprioritizing and “shadow-banning” content by or about candidates (§ 501.2041(2)(h)), and censoring, deplatforming, or shadow-banning “journalistic enterprises” (§ 501.2041(2)(j)) all clearly restrict platforms’ editorial judgment by preventing them from removing or deprioritizing content or users and forcing them to disseminate messages that they find objectionable.
The consistency requirement (§ 501.2041(2)(b)) and the 30- day restriction (§ 501.2041(2)(c)) also—if somewhat less obviously—restrict editorial judgment. Together, these provisions force platforms to remove (or retain) all content that is similar to
[p. 47]
material that they have previously removed (or retained). Even if a platform wants to retain or remove content in an inconsistent manner—for instance, to steer discourse in a particular direction— it may not do so. And even if a platform wants to leave certain content up and continue distributing it to users, it can’t do so if within the past 30 days it’s removed other content that a court might find to be similar. These provisions thus burden platforms’ right to make editorial judgments on a case-by-case basis or to change the types of content they’ll disseminate—and, hence, the messages they express.
The user-opt-out requirement (§ 501.2041(2)(f), (g)) also triggers First Amendment scrutiny because it forces platforms, upon a user’s request, not to exercise the editorial discretion that they otherwise would in curating content—prioritizing some posts and deprioritizing others—in the user’s feed. Even if a platform would prefer, for its own reasons, to give greater prominence to some posts while limiting the reach of others, the opt-out provision would prohibit it from doing so, at least with respect to some users.
S.B. 7072’s disclosure provisions implicate the First Amendment, but for a different reason. These provisions don’t directly restrict editorial judgment or expressive conduct, but indirectly burden platforms’ editorial judgment by compelling them to disclose certain information. Laws that compel commercial disclosures and thereby indirectly burden protected speech trigger relatively permissive First Amendment scrutiny, which we will
[p. 48] explain. See Zauderer, 471 U.S. at 651; Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2378 (2018) (“NIFLA”).
Finally, the exception: We hold that S.B. 7072’s user-dataaccess requirement (§ 501.2041(2)(i)) does not trigger First Amendment scrutiny. This provision—which requires social-media platforms to allow deplatformed users to access their own data stored on the platform’s servers for at least 60 days—doesn’t prevent or burden to any significant extent the exercise of editorial judgment or compel any disclosure.18
* * *
Taking stock: We conclude that social-media platforms’ content-moderation activities—permitting, removing, prioritizing, and deprioritizing users and posts—constitute “speech” within the meaning of the First Amendment. All but one of S.B. 7072’s operative provisions implicate platforms’ First Amendment rights and are therefore subject to First Amendment scrutiny.
[p. 49]
III
A
Having determined that it is substantially likely that S.B. 7072 triggers First Amendment scrutiny, we must now determine the level of scrutiny to apply—and to which provisions.
We begin with the basics. “[A] content-neutral regulation of expressive conduct is subject to intermediate scrutiny, while a regulation based on the content of the expression must withstand the additional rigors of strict scrutiny.” FLFNB II, 11 F.4th at 1291; see also Turner, 512 U.S. at 643–44, 662 (noting that although the challenged provisions “interfere[d] with cable operators’ editorial discretion,” they were content-neutral and so would be subject only to intermediate scrutiny). A law is content-based if it “suppress[es], disadvantage[s], or impose[s] differential burdens upon speech because of its content,” Turner, 512 U.S. at 642—i.e., if it “applies to particular speech because of the topic discussed or the idea or message expressed,” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). A law can be content-based either because it draws “facial distinctions . . . defining regulated speech by particular subject matter” or because, though facially neutral, it “cannot be justified without reference to the content of the regulated speech.” Id. at 163–64 (quotation marks omitted).
Viewpoint-based laws—“[w]hen the government targets not subject matter, but particular views taken by speakers on a subject”—constitute “an egregious form of content discrimination.” [p. 49]
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). They “are prohibited,” seemingly as a per se matter. Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018); see Turner, 512 U.S. at 642 (“The government may not regulate speech based on hostility—or favoritism—towards the underlying message expressed.” (quotation marks omitted and alteration adopted)).
1
NetChoice asks us to affirm the district court’s conclusion that S.B. 7072’s “viewpoint-based motivation” subjects the entire Act—every provision—“to strict scrutiny, root and branch.” Doc. 113 at 25 (emphasis added). It’s certainly true—as already explained—that at least a handful of S.B. 7072’s key proponents candidly acknowledged their desire to combat what they perceived to be the “leftist” bias of the “big tech oligarchs” against “conservative” ideas. Id. It’s also true that the Act applies only to a subset of speakers consisting of the largest social-media platforms and that the law’s enacted findings refer to the platforms’ allegedly “unfair” censorship. See S.B. 7072 § (9), (10); Fla. Stat. § 501.2041(1)(g). But given the state of our (sometimes dissonant) precedents, we don’t think that NetChoice is substantially likely to succeed on the merits of its claim that the entire Act is impermissibly viewpoint-based. Here’s why.
We have held—“many times”—that “when a statute is facially constitutional, a plaintiff cannot bring a free-speech challenge by claiming that the lawmakers who passed it acted with a constitutionally impermissible purpose.” In re Hubbard, 803 F.3d 1298, [p. 51]
1312 (11th Cir. 2015). In Hubbard, we cited (among other decisions) United States v. O’Brien for the proposition that courts shouldn’t look to a law’s legislative history to find an illegitimate motivation for an otherwise constitutional statute. Id. (citing United States v. O’Brien, 391 U.S. 367, 383 (1968)). The plaintiffs in O’Brien had challenged a law prohibiting the burning of draft cards on the ground that Congress’s “purpose”—as evidenced in the statements of several legislators—was “to suppress freedom of speech.” 391 U.S. at 382–83. The Supreme Court refused to void the statute “on the basis of what fewer than a handful of Congressmen said about it” given that Congress “had the undoubted power to enact” it if legislators had only made “‘wiser’ speech[es] about it.” Id. at 384; see also Arizona v. California, 283 U.S. 423, 455 (1931) (“Into the motives which induced members of Congress to enact the [statute], this court may not inquire.”). Even though the statute in O’Brien regulated expressive conduct and its legislative history suggested a viewpoint-based motivation, the O’Brien Court declined to invalidate the statute as a per se matter, or even apply strict scrutiny, but rather upheld the law under what we have come to call intermediate scrutiny. 391 U.S. at 382.
To be fair, there is some support for NetChoice’s motivation-based argument for invalidating S.B. 7072 in toto, but not enough to overcome the clear statements in Hubbard and O’Brien. It’s true that the Supreme Court said in Turner that “even a regulation neutral on its face may be content based if its manifest purpose is to regulate speech because of the message it conveys.”
[p. 52]
Turner, 512 U.S. at 645–46 (emphasis added). And Turner cited, with a hazy “cf.” signal, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 534–535 (1993), which held that in the free-exercise context, it was appropriate to look beyond “the text of the laws at issue” to identify discriminatory animus against a minority religion. But NetChoice hasn’t cited—and we’re not aware of— any Supreme Court or Eleventh Circuit decision that relied on legislative history or statements by proponents to characterize as viewpoint-based a law challenged on free-speech grounds.19 The closest the Supreme Court seems to have come is in Sorrell v. IMS Health, Inc., in which it looked to a statute’s “formal legislative findings” to dispel “any doubt” that the challenged statute was
[p. 53]
content-based. 564 U.S. at 564–65. But the only evidence of viewpoint-based motivation in S.B. 7072’s enacted findings are the references to “unfair[ness].” Those, we think, are far less damning than the findings in Sorrell, which expressly—and startlingly— stated that the regulated speakers conveyed messages that were “often in conflict with the goals of the state.” 564 U.S. at 565 (quotation marks omitted).
Finally, the fact that S.B. 7072 targets only a subset of socialmedia platforms isn’t enough to subject the entire law to strict scrutiny or per se invalidation. It’s true that the Supreme Court’s “precedents are deeply skeptical of laws that distinguish among different speakers, allowing speech by some but not others” because they “run the risk that the State has left unburdened those speakers whose messages are in accord with its own views.” NIFLA, 138 S. Ct. at 2378 (quotation marks omitted); cf. Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 592 (1983) (noting that the power to “single[] out a few members of the press presents such a potential for abuse that no interest suggested by [the State] can justify the scheme”). But “[i]t would be error to conclude . . . that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others”: “[H]eightened scrutiny is unwarranted when the differential treatment is ‘justified by some special characteristic of’ the particular medium being regulated.”20Turner, 512
[p. 54]
U.S. at 660–61 (quoting Minneapolis Star, 460 U.S. at 585). S.B. 7072’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. See Appellant’s App’x at 237–46. Given Hubbard and O’Brien—and in the absence of clear precedent enabling us to find a viewpoint-discriminatory purpose based on legislative history— we conclude that NetChoice hasn’t shown a substantial likelihood of success on the merits of its argument that S.B. 7072 should be stricken, or subject to strict scrutiny, in its entirety.21
III-A-2
Having determined that we cannot use the Act’s ch
Finally, we turn to the remaining preliminary-injunction factors. Our conclusions about which provisions of S.B. 7072 are substantially likely to violate the First Amendment effectively determine the result of this appeal because likelihood of success on the merits “is generally the most important of the four factors.” Gonzalez, 978 F.3d at 1271 n.12 (quotation marks omitted). With respect to the second factor, we have held that “an ongoing violation of the First Amendment”—as the platforms here would suffer in the absence of an injunction—“constitutes an irreparable injury.” FF Cosms. FL, Inc. v. City of Miami Beach, 866 F.3d 1290, 1298 (11th Cir. 2017); see also Otto v. City of Boca Raton, 981 F.3d 854, 870 (11th Cir. 2020). The third and fourth factors—“damage to the opposing party” and the “public interest”—“can be consolidated” because “[t]he nonmovant is the government.” Otto, 981 F.3d at 870. And “neither the government nor the public has any legitimate interest in enforcing an unconstitutional ordinance.” Id. Therefore, the preliminary-injunction factors weigh in favor of enjoining the likely unconstitutional provisions of the Act.
* * *
We hold that the district court did not abuse its discretion when it preliminarily enjoined those provisions of S.B. 7072 that are substantially likely to violate the First Amendment. But the district court did abuse its discretion when it enjoined provisions of S.B. 7072 that aren’t likely unconstitutional. Accordingly, we [p. 66] AFFIRM the preliminary injunction in part, and VACATE and REMAND in part, as follows:
This is a case about property rights, not free speech.
For a brief, note the everyday, obvious, man on the street’s view of this. To get more free speech and a more open society, a giant leftwing company is saying it should be able to shut down thousands of small individuals’ speech. Try explaining that to the ordinary person. Con Law is a fraud, sophistry at its ultimate. From a free speech point of view, that’s crazy. Don’t pretend that allwing Twitter toshut down speech is increasing the amount of free speech in America. Twitter’s only argument must be Property Rights--- that it is a private company, and the right of property is more important than the right of free speech.
Is there an antitrust argument here too? Twitter is refusing to deal with certain people, so as to maintain a cartel on expressing opinions.
See https://www.flgov.com/2021/05/24/governor-ron-desantis-signs-billto-stop-the-censorship-of-floridians-by-big-tech. Opinion of the Court 21-12355 Silicon Valley ideology.” Id.
While S.B. 7072 also enacted antitrust-related provisions, only §§ 106.072 and 501.2041 are at issue in this appeal.
For purposes of this appeal, the State does not defend the Act’s post-prioritization provisions.
The State was right to give that up, though I don’t think they are unconstitutional— those provisions were a mistake to include, since most users will want Twitter to prioritize which posts they see. It’s probably a relief to them that the Court fixed their mistake in writing the statute. Is this a way to allow post-enactment friendly amendments?
The only provisions that NetChoice challenges as preempted are, for reasons we’ll explain, also substantially likely to violate the First Amendment. Of course, federal courts should generally “avoid reaching constitutional questions if there are other grounds upon which a case can be decided,” but that rule applies only when “a dispositive nonconstitutional ground is available.” Otto v. City of Boca Raton, 981 F.3d 854, 871 (11th Cir. 2020) (quotation marks and emphasis omitted). Here, whether or not the preemption ground is “dispositive,” but cf. id., it isn’t “nonconstitutional” because federal preemption is rooted in the Supremacy Clause of Article VI. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368 (1986).
In Turner, the Court applied intermediate scrutiny because the law was content-neutral. See 512 U.S. at 662. The point for present purposes is that the Court held that the must-carry provision triggered First Amendment scrutiny.
Policies and Guidelines, YouTube, https://www.youtube.com/creators/how-things-work/policies-guidelines (last accessed May 15, 2022).
Facebook Community Standards, Meta, https://transparency.fb.com/policies/community-standards (last accessed May 15, 2022).
The Twitter Rules, Twitter, https://help.twitter.com/en/rules-and-policies/twitter-rules (last accessed May 15, 2022).
Roblox Community Standards, Roblox, https://en.help.roblox.com/hc/enus/articles/203313410-Roblox-Community-Standards (last accessed May 15, 2022).
Membership Rules, Vegan Forum, https://www.veganforum.org/help/terms (last accessed May 15, 2022).
ProAmericaOnly, https://proamericaonly.org (last accessed May 15, 2022).
The Democratic Hub, https://www.democratichub.com (last accessed May 15, 2022).
The fact that some social-media platforms choose to allow most content doesn’t undermine their claim to First Amendment protection. See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 429 (D.C. Cir. 2017) (Kavanaugh, J., dissental) (explaining that the fact that platforms “have not been aggressively exercising their editorial discretion does not mean that they have no right to exercise their editorial discretion”).
Texas and several other states as amici insist that social-media platforms’ “censorship, deplatforming, and shadow banning” activities aren’t inherently expressive conduct for First Amendment purposes because the platforms don’t “inten[d] to convey a particularized message.” States’ Amicus Br. at 6– 7 (quoting FLFNB I, 901 F.3d at 1240). They note that the platforms’ most prominent CEOs have denied accusations that their content rules are based on ideology or political perspective. But while an “intent to convey a particularized message” was once necessary to qualify as expressive conduct, FLFNB I explained that “[s]ince then . . . the [Supreme] Court has clarified that a ‘narrow, succinctly articulable message is not a condition of constitutional protection’ because ‘if confined to expressions conveying a “particularized message” [the First Amendment] would never reach the unquestionably shielded painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.’” FLFNB I, 901 F.3d at 1240 (last alteration in original) (quoting Hurley, 515 U.S. at 569)). Instead, as explained in text, we require only that a “reasonable person would interpret [the conduct] as some sort of message.” Id. (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004)).
To the extent that the states argue that social-media platforms lack the requisite “intent” to convey a message, we find it implausible that platforms would engage in the laborious process of defining detailed community standards, identifying offending content, and removing or deprioritizing that content if they didn’t intend to convey “some sort of message.” Unsurprisingly, the record in this case confirms platforms’ intent to communicate messages through their content-moderation decisions—including that certain material is harmful or unwelcome on their sites. See, e.g., Doc. 25-1 at 2 (declaration of YouTube executive explaining that its approach to content moderation “is to remove content that violates [its] policies (developed with outside experts to prevent real-world harms), reduce the spread of harmful misinformation . . . and raise authoritative and trusted content”); Facebook Community Standards, supra (noting that Facebook moderates content “in service of” its “values” of “authenticity,” “safety,” “privacy,” and “dignity”).