Case: NetChoice v. Moody

This is a case about content regulation of social-media providers in Florida. On May 27, 2021, NetChoice and Computer & Communications Industry Association (two trade associations that seek to promote and protect free speech and free enterprise on the Internet) filed this lawsuit in the U.S. District Court for the Northern District of Florida. The trade associations sued Florida state officials, including the Attorney General of Florida, Deputy Secretary of the Florida Department of Management Services, and the Florida Elections Commission under 42 U.S.C. § 1983 and Ex parte Young. Represented by private counsel, the trade associations sought an immediate injunction on a new state law that was set to go into effect on July 1, 2021. They also sought a declaration that the law was unconstitutional. They claimed that this law, Senate Bill 7072 ("Bill"), adopted by the 2021 Florida Legislature, infringed on freedom of speech, equal protection, and due process under the First and Fourteenth Amendments. They also claimed that this law exceeded the state of Florida’s authority under the U.S. Constitution’s Commerce Clause and was preempted by Section 230 of the Communications Decency Act.
 
Among other provisions, the Bill would have prohibited social-media providers in Florida from barring posts by any candidate for office, even if they posted alleged misinformation, incitements to violence, or other content that violated the providers’ standards. The Bill would also have limited providers’ ability to deploy algorithms for these candidates’ posts. Furthermore, while imposing a size requirement for providers to whom it was applicable, the Bill carved out an exception for local businesses.
 
In June 2021, several large public interest organizations filed amicus briefs in support of the plaintiffs. These included the American Civil Liberties Union, Electronic Frontier Foundation, and Internet Association.
 
On June 30, 2021, after briefs and oral arguments from both parties, Judge Robert Hinkle granted a preliminary injunction, enjoining “enforcement of the parts of the legislation that are preempted or violate the First Amendment.”
 
In its ruling, the court agreed with the plaintiffs that the Bill’s regulatory impositions about deplatforming and content control appeared to contradict federal law. Additionally, the court clarified that the First Amendment concerns government control of free speech—not private entities’ control, as the defendants suggested. Based on Supreme Court case law, the court determined that the Bill required analysis via the standard of strict scrutiny, and ultimately would not withstand it because “promoting speech on one side of an issue or restricting speech on the other . . . is not a legitimate state interest.”
 
In addition to plaintiffs’ likelihood of success, the court found the other factors for preliminary injunction easily satisfied: there would be irreparable injury to the plaintiffs without the injunction; there would be greater potential damages to plaintiffs without the injunction than damages from the injunction to defendants; and the injunction would not harm the public interest.
 
On July 12, 2021, Florida state officials appealed the preliminary injunction decision to the US Court of Appeals for the Eleventh Circuit. No. 21-12355-GG. Accordingly, on August 25, 2021, the district court stayed further proceedings until resolution of the appeal.
 
On May 23, 2022, the Eleventh Circuit affirmed and vacated in part the district court’s opinion and remanded it back down for revision according to its judgment. Circuit Judge Kevin C. Newsom held that the media platforms engaged in First-Amendment-protected activity, and the media platforms were not common carriers. All but one of the statutory provisions triggered First Amendment strict scrutiny because the entire bill was motivated by the state’s viewpoint-based purpose to defend conservatives’ speech from perceived liberal big tech bias.
 
The circuit court further held the media platforms were not likely to succeed on the merits of their claim that every challenged provision was per se invalid because of the Bill's viewpoint-based motivation. The relevant provisions of S.B. 7072—which are codified at Fla. Stat. §§ 106.072 and 501.20412—could be divided into three categories: (1) content-moderation restrictions, (2) disclosure obligations, and (3) a user-data requirement. 
 
However, the platforms were likely to succeed on three claims:

1. That prohibitions against de-platforming candidates, deprioritizing and “shadow-banning” content, and censoring “journalistic enterprises” violated the First Amendment, 
2. That requiring media platforms to apply their standards in a consistent manner and allowing users to opt-out of their algorithms, and limiting changes to their user agreements violated First Amendment, and
3. That the requirement that they provide notice and detailed justification for every content-moderation action was unduly burdensome.

The circuit court thus left the injunction against the provisions relevant to the above claims. The court vacated the injunction on the disclosure provision because it was not likely a constitutional violation. 34 F.4th 1196.
 
On June 16, 2022, the parties jointly filed a motion to stay the case in the Eleventh Circuit. The court granted it five days later pending their future petition for a writ of certiorari to the U.S. Supreme Court. The parties filed similar motions to extend the stay in the district court on June 16, 2022. The district court granted the motion on June 18. The defendants filed their notice for a writ of certiorari on September 23, 2022. As of October 29, 2022, the case is pending.