Citation
NetChoice, LLC, d.b.a. NetChoice, et. al v. Attorney General, State of Florida, et. al.
34 F.4th 1196 (11th Cir. 2022), affg., NetChoice v. Moody, 546 F.Supp.3d 1082 (N.D. Fla. 2021)
Summary
This is a challenge to a Florida law that bars the removal, labeling, hiding speech, or suspending of accounts on certain social media websites of candidates for elected office or on certain “journalistic enterprises.” The issues in the case are very similar to the Texas litigation in NetChoice v. Paxton.
Latest Action
On October 24, 2022, NetChoice filed a brief in response to the state of Florida’s petition for certiorari, arguing that the Eleventh Circuit Court of Appeals was right in blocking the law, but the U.S. Supreme Court should grant certiorari because there is a split in the circuit courts.
On September 21, 2022, the state of Florida filed a petition for certiorari, asking the Supreme Court to review the decision of the Eleventh Circuit.
On May 23, 2022, the Eleventh Circuit issued a unanimous opinion, striking down the law as to the bar on content moderation but upholding the transparency and reporting requirements. It held that content moderation is an editorial function protected by the First Amendment and invalid regardless of the level of scrutiny. By moderating, the website decides what type of content it wants to host. Private companies have a right to control what they host, even if they are unfair in how they do it. The government has no interest in “leveling the playing field for speakers” or enabling users to say whatever they want, even if other alternative platforms do not have the same reach. The court dismissed the argument that platforms are common carriers. They hold themselves open for all users but must abide by terms of service; that doesn’t change because the government imposes the label of public forum on the sites.
As to the disclosure requirements in the law, the court held that they probably satisfy heightened scrutiny, since the government has interest in consumers having access to content, even if an account is closed, and in being fully informed about changes of terms of service and reader statistics.
On June 22, 2022, the Eleventh Circuit issued an order staying the mandate to return the case to the U.S. District Court until August 22, 2022. This order was extended to reflect the revised deadlines to seek certiorari.
Amicus Brief
In November 2021, the American Booksellers for Free Expression, Authors Guild, and Media Coalition Foundation joined an amicus brief along with other media groups, filed in the Eleventh Circuit Court of Appeals. The brief argues that content moderation is an editorial function protected by the First Amendment. It also rebuts the state’s “unified speech product” theory, which claims that “self-curated” speech should be given greater First Amendment protection than content on sites that are primarily composed of the speech of others.
Other groups in the amicus brief are: the Reporters Committee for Freedom of the Press, American Civil Liberties Union, American Civil Liberties Union of Florida, Media Law Resource Center, and PEN America.
Background
On May 24, 2021, Florida enacted Senate Bill 7072, which has three main components:
- It bars the removal of a profile of any formal candidate for elected office in Florida;
- It bars removal, editing, fact-checking, or labeling of posts by any “journalistic enterprise,” which is defined as anyone who publishes 100,000 words a year or has a certain number of users; and
- It allows users to sue sites if they do not moderate content “consistently,” if they change their moderation policies more than once a month, or if they remove or edit a user’s post without informing the person that it was done and explaining why the post was removed or how it was edited.
NetChoice filed a lawsuit in the U.S. District Court for the Northern District of Florida to challenge the Florida law.
On June 30, 2021, U.S. District Court Judge Robert Hinkle held that the First Amendment protects social media websites and that “leveling the playing field” is not a legitimate state interest. He then concluded that this is a content-based restriction on speech and that strict scrutiny applies. Since there is no compelling interest, the law is unconstitutional. The law is also unconstitutional because it is not narrowly tailored. Judge Hinkle added that the law would have failed intermediate scrutiny a well, since it does not serve a substantial state interest. Finally, he held that the law conflicts with Section 230, so it is pre-empted by the federal law.
The state of Florida appealed to the U.S. Circuit Court of Appeals for the Eleventh Circuit.
On April 28, 2022, the case was argued before a three-judge panel in the Eleventh Circuit. The case was heard by Judges Kevin Newsom, Gerald Tjoflat, and Ed Carnes. The argument was set for 30 minutes but lasted for 77 minutes. Florida asked the court to reverse the decision by U.S. District Court Judge Hinkle granting injunction blocking enforcement of the state law that barred the removal, labeling, hiding speech, or suspending accounts on certain social media websites of candidates for elected office or on certain “journalistic enterprises.”