Case: NetChoice v. Moody

4:21-cv-00220 | U.S. District Court for the Northern District of Florida

Filed Date: May 27, 2021

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Case Summary

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:

That prohibitions against de-platforming candidates, deprioritizing and “shadow-banning” content, and censoring “journalistic enterprises” violated the First Amendment,
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
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.


4:21-cv-00220	Docket [PACER] Netchoice v. Moody	Aug. 25, 2021	Aug. 25, 2021 Docket
1 4:21-cv-00220	Complaint Netchoice v. Moody	May 27, 2021	May 27, 2021 Complaint
131 4:21-cv-00220 21-12355	Opinion of the Court NetChoice, LLC v. Attorney General, State of Florida U.S. Court of Appeals for the Eleventh Circuit	May 23, 2022	May 23, 2022 Order/Opinion 34 F.4th 1196

ECF Number	Date	Description	Link
1	May 27, 2021	COMPLAINT for Declaratory and Injunctive Relief against JASON TODD ALLEN, PATRICK GILLESPIE, JOHN MARTIN HAYES, ASHLEY BROOKE MOODY, JONI ALEXIS POITIER, KYMBERLEE CURRY SMITH ( Filing fee $ 402 receipt number AFLNDC-6111479.), filed by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE, LLC. (Attachments: # 1 Summons (Ashley Moody), # 2 Summons (Joni Poitier), # 3 Summons (Jason Allen), # 4 Summons (John Hayes), # 5 Summons (Kymberlee Smith), # 6 Summons (Patrick Gillespie)) (OPRISON, CHRISTOPHER) (Entered: 05/27/2021) 1 Summons (Ashley Moody) View on RECAP 2 Summons (Joni Poitier) View on RECAP 3 Summons (Jason Allen) View on RECAP 4 Summons (John Hayes) View on RECAP 5 Summons (Kymberlee Smith) View on RECAP 6 Summons (Patrick Gillespie) View on RECAP	RECAP
2	May 27, 2021	CIVIL COVER SHEET. (OPRISON, CHRISTOPHER) (Entered: 05/27/2021)	RECAP
3	May 27, 2021	Corporate Disclosure Statement/Certificate of Interested Persons by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE, LLC. (OPRISON, CHRISTOPHER) (Entered: 05/27/2021)	RECAP
4	May 28, 2021	Summons Issued as to JASON TODD ALLEN and (Attachments: # 1 PATRICK GILLESPIE, # 2 JOHN MARTIN HAYES, # 3 ASHLEY BROOKE MOODY, # 4 JONI ALEXIS POITIER, # 5 KYMBERLEE CURRY SMITH) (blb) (Entered: 05/28/2021) 1 gi View on RECAP 2 hay View on RECAP 3 moo View on RECAP 4 poi View on RECAP 5 smi View on RECAP	RECAP
5	June 2, 2021	NOTICE of Appearance by DOUGLAS LAMAR KILBY on behalf of COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION (KILBY, DOUGLAS) (Entered: 06/02/2021)	RECAP
6	June 2, 2021	First MOTION for Leave to File Excess Pages by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (KILBY, DOUGLAS) (Entered: 06/02/2021)	RECAP
7	June 3, 2021	ORDER GRANTING LEAVE TO EXCEED THE WORD LIMIT - Plaintiffs' motion, ECF No. 6, for leave to file a memorandum of excessive length in support of their anticipated motion for a preliminary injunction is granted. Signed by JUDGE ROBERT L HINKLE on 6/3/2021. (cle) (Entered: 06/03/2021)	RECAP
8	June 3, 2021	NOTICE of Appearance by GLENN T BURHANS, JR on behalf of COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION (BURHANS, GLENN) (Entered: 06/03/2021)	RECAP
9	June 3, 2021	NOTICE of Appearance by BRIDGET KELLOGG SMITHA on behalf of COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION (SMITHA, BRIDGET) (Entered: 06/03/2021)	RECAP
10	June 3, 2021	NOTICE of Appearance by CHRISTOPHER ROY CLARK on behalf of COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION (CLARK, CHRISTOPHER) (Entered: 06/03/2021)	RECAP
11	June 3, 2021	NOTICE of Appearance by JOSEPH TRUMON PHILLIPS on behalf of COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE LLC (PHILLIPS, JOSEPH) (Entered: 06/03/2021)	RECAP
12	June 3, 2021	AFFIDAVIT of Service for Summons and Complaint for Declaratory and Injunctive Relief served on Ashley Brooke Moody, in her official capacity as Attorney General of the State of Florida on May 28, 2021, filed by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE LLC. (OPRISON, CHRISTOPHER) (Entered: 06/03/2021)	RECAP
13	June 3, 2021	AFFIDAVIT of Service for Summons and Complaint for Declaratory and Injunctive Relief served on Joni Alexis Poitier, in her official capacity as Commissioner of the Florida Elections Commission on May 28, 2021, filed by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE LLC. (OPRISON, CHRISTOPHER) (Entered: 06/03/2021)	RECAP
14	June 3, 2021	AFFIDAVIT of Service for Summons and Complaint for Declaratory and Injunctive Relief served on Jason Todd Allen, in his official capacity as Commissioner of the Florida Elections Commission on May 28, 2021, filed by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE LLC. (OPRISON, CHRISTOPHER) (Entered: 06/03/2021)	RECAP
15	June 3, 2021	AFFIDAVIT of Service for Summons and Complaint for Declaratory and Injunctive Relief served on John Martin Hayes, in his official capacity as Commissioner of the Florida Elections Commission on May 28, 2021, filed by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE LLC. (OPRISON, CHRISTOPHER) (Entered: 06/03/2021)	RECAP
16	June 3, 2021	AFFIDAVIT of Service for Summons and Complaint for Declaratory and Injunctive Relief served on Kymberlee Curry Smith, in her official capacity as Commissioner of the Florida Elections Commission on May 28, 2021, filed by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE LLC. (OPRISON, CHRISTOPHER) (Entered: 06/03/2021)	RECAP
17	June 3, 2021	AFFIDAVIT of Service for Summons and Complaint for Declaratory and Injunctive Relief served on Patrick Gillespie, in his official capacity as Deputy Secretary of Business Operations of the Florida Department of Management Services on May 28, 2021, filed by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE LLC. (OPRISON, CHRISTOPHER) (Entered: 06/03/2021)	RECAP
18	June 3, 2021	MOTION to Appear Pro Hac Vice by Lauren Gallo White.( Filing fee $ 208 receipt number AFLNDC-6120416.) by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Exhibit Certificate of Good Standing) (BURHANS, GLENN) (Entered: 06/03/2021) 1 Exhibit Certificate of Good Standing View on RECAP	RECAP
19	June 3, 2021	MOTION to Appear Pro Hac Vice( Filing fee $ 208 receipt number AFLNDC-6120468.) by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Exhibit Certificate of Good Standing) (KILBY, DOUGLAS) (Entered: 06/03/2021) 1 Exhibit Certificate of Good Standing View on RECAP	RECAP
20	June 3, 2021	MOTION to Appear Pro Hac Vice by Brian M. Willen.( Filing fee $ 208 receipt number AFLNDC-6120479.) by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Exhibit Certificate of Good Standing) (KILBY, DOUGLAS) (Entered: 06/03/2021) 1 Exhibit Certificate of Good Standing View on RECAP	RECAP
21	June 3, 2021	MOTION to Appear Pro Hac Vice by Steffen N. Johnson.( Filing fee $ 208 receipt number AFLNDC-6120484.) by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Exhibit Certificate of Good Standing) (KILBY, DOUGLAS) (Entered: 06/03/2021) 1 Exhibit Certificate of Good Standing View on RECAP	RECAP
22	June 3, 2021	First MOTION for Preliminary Injunction and Expedited Consideration by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (KILBY, DOUGLAS) (Entered: 06/03/2021)	RECAP
23	June 3, 2021	AFFIDAVIT re 22 First MOTION for Preliminary Injunction and Expedited Consideration by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Affidavit) (KILBY, DOUGLAS) (Entered: 06/03/2021) 1 Affidavit View on RECAP	RECAP
24	June 3, 2021	AFFIDAVIT re 22 First MOTION for Preliminary Injunction and Expedited Consideration by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Affidavit) (KILBY, DOUGLAS) (Entered: 06/03/2021) 1 Affidavit View on RECAP	RECAP
25	June 3, 2021	AFFIDAVIT re 22 First MOTION for Preliminary Injunction and Expedited Consideration by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Affidavit) (KILBY, DOUGLAS) (Entered: 06/03/2021) 1 Affidavit View on RECAP	RECAP
26	June 3, 2021	AFFIDAVIT re 22 First MOTION for Preliminary Injunction and Expedited Consideration by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Affidavit) (KILBY, DOUGLAS) (Entered: 06/03/2021) 1 Affidavit View on RECAP	RECAP
27	June 3, 2021	AFFIDAVIT re 22 First MOTION for Preliminary Injunction and Expedited Consideration by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Affidavit) (KILBY, DOUGLAS) (Entered: 06/03/2021) 1 Affidavit View on RECAP	RECAP
28	June 3, 2021	AFFIDAVIT re 22 First MOTION for Preliminary Injunction and Expedited Consideration by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Affidavit) (KILBY, DOUGLAS) (Entered: 06/03/2021) 1 Affidavit View on RECAP	RECAP
29	June 3, 2021	AFFIDAVIT re 22 First MOTION for Preliminary Injunction and Expedited Consideration by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (Attachments: # 1 Affidavit) (KILBY, DOUGLAS) (Entered: 06/03/2021) 1 Affidavit View on RECAP	RECAP
30	June 3, 2021	Memorandum of Law in Support of 22 Motion for Preliminary Injunction by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (KILBY, DOUGLAS) Modified on 6/23/2021 to reflect title and terminate as this is not a motion (ckm). (Entered: 06/03/2021)	RECAP
31	June 4, 2021	ORDER SETTING A SCHEDULING CONFERENCE. Signed by JUDGE ROBERT L HINKLE on 6/4/21. (sms) By separate notice, the clerk must set a scheduling conference for June 10, 2021, at 2:00 p.m., by telephone.(cle) (Entered: 06/04/2021)	RECAP
	June 4, 2021	ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE MARTIN A FITZPATRICK notified that action is needed re: 18 MOTION to Appear Pro Hac Vice by Lauren Gallo White, 19 MOTION to Appear Pro Hac Vice, 20 MOTION to Appear Pro Hac Vice by Brian M. Willen, and 21 MOTION to Appear Pro Hac Vice by Steffen N. Johnson. Referred to MARTIN A FITZPATRICK. (cle)
32	June 7, 2021	NOTICE OF TELEPHONIC HEARING: Telephonic Scheduling Conference set for 6/10/2021 02:00 PM before JUDGE ROBERT L HINKLE. Call in number: 888-684-8852Access code: 3243416#Security code: 1234#Proceedings may not be recorded or otherwise broadcast for public dissemination. s/ Cindy MarkleyCourtroom Deputy Clerk (ckm) (Entered: 06/07/2021)	RECAP
33	June 7, 2021	ORDER - granting 18 Motion to Appear Pro Hac Vice - re: LAUREN GALLO WHITE for NETCHOICE, LLC. and CCIA. Signed by MAGISTRATE JUDGE MARTIN A FITZPATRICK on 6/7/2021. (cle) (Entered: 06/07/2021)	RECAP
34	June 7, 2021	ORDER - granting 19 Motion to Appear Pro Hac Vice - re: MENG JIA YANG for NETCHOICE, LLC. and CCIA. Signed by MAGISTRATE JUDGE MARTIN A FITZPATRICK on 6/7/2021. (cle) (Entered: 06/07/2021)	RECAP
35	June 7, 2021	ORDER - granting 20 Motion to Appear Pro Hac Vice - re: BRIAN MICHAEL WILLEN for NETCHOICE, LLC. and CCIA. Signed by MAGISTRATE JUDGE MARTIN A FITZPATRICK on 6/7/2021. (cle) (Entered: 06/07/2021)	RECAP
36	June 7, 2021	ORDER - granting 21 Motion to Appear Pro Hac Vice - re: STEFFEN N. JOHNSON for NETCHOICE, LLC. and CCIA. Signed by MAGISTRATE JUDGE MARTIN A FITZPATRICK on 6/7/2021. (cle) (Entered: 06/07/2021)	RECAP
37	June 9, 2021	STATUS REPORT re: Compliance with Scheduling Order by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION. (KILBY, DOUGLAS) (Entered: 06/09/2021)	RECAP
38	June 9, 2021	MOTION to Appear Pro Hac Vice by Peter Karanjia.( Filing fee $ 208 receipt number AFLNDC-6128887.) by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE LLC. (Attachments: # 1 Exhibit) (KARANJIA, PETER) (Entered: 06/09/2021) 1 Exhibit View on RECAP	RECAP
39	June 9, 2021	MOTION to Appear Pro Hac Vice by Ben C. Fabens-Lassen.( Filing fee $ 208 receipt number AFLNDC-6128913.) by COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, NETCHOICE LLC. (Attachments: # 1 Exhibit) (FABENS-LASSEN, BEN) (Entered: 06/09/2021) 1 Exhibit View on RECAP	RECAP

Case: NetChoice v. Moody

4:21-cv-00220 | U.S. District Court for the Northern District of Florida

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