11th Circuit Disagrees With The 5th Circuit (But Actually Explains Its Work): Florida’s Social Media Bill Still (Mostly) Unconstitutional
Well, well. As we still wait to see what the Supreme Court will do about the 5th Circuit's somewhat bizarre, and reasonless reinstatement of Texas' ridiculously bad social media content moderation bill, the 11th Circuit has come out with what might be a somewhat rushed decision going mostly in the other direction, and saying that most of Florida's content moderation bill is, as the lower court said, unconstitutional. It's worth reading the entire decision, which may take a bit longer than the 5th Circuit's one sentence reinstatement of the law, as it makes a lot of good points. I still think that the court is missing some important points about the parts of the law that it has reinstated (around transparency), but we'll have another post on that shortly (and I hope those mistakes may be fixed with more briefing).
As for what the court got right: it tossed the key parts of the law around moderation, saying that those were an easy call as unconstitutional, just like the lower court said. The government cannot mandate how a website handles content moderation. The ruling opens strong:
Not in their wildest dreams could anyone in the Foundinggeneration have imagined Facebook, Twitter, YouTube, or TikTok. But whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom ofspeech and the press, like the First Amendment's command, do notvary 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 theFirst 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 sayit.
The court effectively laughs off Florida's argument that social media is no longer considered a private actor" and effectively mocks the claims, made by Florida, that the big tech' oligarchs in Silicon Valley" are trying to silence conservative speech in favor of a radical leftist' agenda." The 1st Amendment protects companies' right to moderate how they see fit:
We hold that it is substantially likely that social-media companies-even the biggest ones-are private actors" whose rightsthe First Amendment protects, Manhattan Cmty., 139 S. Ct. at1926, 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 toengage in content moderation unconstitutionally burden that prerogative. We further conclude that it is substantially likely that oneof the law's particularly onerous disclosure provisions-whichwould require covered platforms to provide a thorough rationale"for each and every content-moderation decision they make-violates the First Amendment. Accordingly, we hold that the companies are entitled to a preliminary injunction prohibiting enforcement of those provisions.
As noted above, the court also does say that there are a few disclosure/transparency provisions that it finds far less burdensome" are unlikely" to violate the 1st Amendment, and vacates that part of the lower court ruling. I still think this is incorrect, but, as noted, we'll explain that part in another post.
For the most part, this is a fantastic ruling, explaining clearly why content moderation is protected by the 1st Amendment. And, because I know that some supporters of Florida in our comments kept insisting that the lower court decision was only because it was a liberal activist" judge, I'll note that this ruling was written by Judge Kevin Newsom, who was appointed to the court by Donald Trump (and the other two judges on the panel were also nominated by Republican Presidents).
The ruling kicks off by noting, correctly, that social media is mostly made up of speech by third parties, and also (thankfully!) recognizing that it's not just the giant sites, but smaller sites as well:
At their core, social-media platforms collect speech createdby third parties-typically in the form of written text, photos, andvideos, which we'll collectively call posts"-and then make thatspeech available to others, who might be either individuals whohave chosen to follow" the post"-er or members of the generalpublic. Social-media platforms include both massive websites withbillions 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 VeganForum (self-explanatory)
It's good that they recognize that these kinds of laws impact smaller companies as well.
From there the court makes three important points": private websites are not the government, social media is different than a newspaper, and social media are not dumb pipes" like traditional telecom services:
Three important points about social-media platforms:First-and this would be too obvious to mention if it weren't sooften lost or obscured in political rhetoric-platforms are privateenterprises, not governmental (or even quasi-governmental) entities. No one has an obligation to contribute to or consume thecontent that the platforms make available. And correlatively, whilethe 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 forcea platform to allow her to contribute to or consume social-mediacontent.
Second, a social-media platform is different from traditionalmedia outlets in that it doesn't create most of the original contenton its site; the vast majority of tweets" on Twitter and videos onYouTube, for instance, are created by individual users, not thecompanies 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 standardsspecifying the type of content that it will (and won't) allow on itssite, add addenda or disclaimers to certain posts (say, warning ofmisinformation or mature content), or publish its own posts.
Third, and relatedly, social-media platforms aren't dumbpipes": They're not just servers and hard drives storing information or hosting blogs that anyone can access, and they're notinternet service providers reflexively transmitting data from pointA to point B. Rather, when a user visits Facebook or Twitter, forinstance, she sees a curated and edited compilation of content fromthe people and organizations that she follows. If she follows 1,000people and 100 organizations on a particular platform, for instance,her feed"-for better or worse-won't just consist of every singlepost created by every single one of those people and organizationsarranged in reverse-chronological order. Rather, the platform willhave exercised editorial judgment in two key ways: First, the platform will have removed posts that violate its terms of service orcommunity 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 choosinghow to prioritize and display posts-effectively selecting which users' speech the viewer will see, and in what order, during any givenvisit to the site.
Each of these points is important and effectively dispenses with much of the nonsense we've seen people claim in the past. First, it tosses aside the incorrect and misleading argument that some have read into Packingham's decision that notes the internet is a public square." Here, the judges correctly note that Packingham only stands for the rule that the government cannot restrict their access to social media, and not that it can force private companies to host them.
Also, I love the fact that the court makes the not a dumb pipe" argument, and even uses the line reflexively transmitting data from point A to point B." That's nearly identical to the language that I've used in explaining why it makes no sense to call social media a common carrier.
Next, the court points out, again accurately, that the purpose of a social media website is to act as an intermediary" between users, but also (and this is important) in crafting different types of online communities, including focusing on niches:
Accordingly, a social-media platform serves as an intermediary between users who have chosen to partake of the service theplatform provides and thereby participate in the community it hascreated. In that way, the platform creates a virtual space in whichevery 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 andresources into editing and organizing-the best word, we think, iscurating-users' posts into collections of content that they then disseminate to others. By engaging in this content moderation, theplatforms develop particular market niches, foster different sorts ofonline communities, and promote various values and viewpoints.
This is also an important point that is regularly ignored or overlooked. It's the point that the authors of Section 230 have tried to drive home in explaining why they wrote the law in the first place. When they talk about diversity of political discourse" in the law, they never meant all on the same site," but rather giving websites the freedom to cater to different audiences. It's fantastic that this panel recognizes that fact.
When we get to the meat of the opinion, explaining the decision, the court again makes a bunch of very strong, and very correct points, about the impact of a law like Florida's.
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 makesa judgment about whether and to what extent it will publish information to its users-a judgment rooted in the platform's ownviews about the sorts of content and viewpoints that are valuableand appropriate for dissemination on its site. As the officials whosponsored and signed S.B. 7072 recognized when alleging that BigTech" 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 itperceives to be incendiary political rhetoric, pornographic content,or public-health misinformation, it conveys a message and therebyengages in speech" within the meaning of the First Amendment.
Laws that restrict platforms' ability to speak through content moderation therefore trigger First Amendment scrutiny. Twolines of precedent independently confirm this commonsense conclusion: first, and most obviously, decisions protecting exercises ofeditorial judgment"; and second, and separately, those protectinginherently expressive conduct.
The key point here: the court recognizes that content moderation is about editorial judgment" and, as such, easily gets 1st Amendment protection. It cites case after case holding this, focusing heavily on the ruling in Turner v. FCC. This is actually important, as some people (notably FCC commissioner Brendan Carr) trying to tear down Section 230's protections have ridiculously tried to argue that the ruling in Turner supports their views. But those people are wrong, as the court clearly notes:
So too, in Turner Broadcasting Systems, Inc. v. FCC, theCourt held that cable operators-companies that own cable linesand choose which stations to offer their customers-engage inand transmit speech." 512 U.S. at 636. [B]y exercising editorialdiscretion over which stations or programs to include in [their] repertoire," the Court said, they seek to communicate messages on awide 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 decisionsnonetheless constitute communicative acts."). Because cable operators' decisions about which channels to transmit were protectedspeech, the challenged regulation requiring operators to carrybroadcast-TV channels triggered First Amendment scrutiny
(Just as an aside, this also applies to all the nonsense we've heard people claim in trying to argue that OAN can force DirecTV to continue to carry it).
Either way, the court drives home: content moderation is editorial judgment.
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, andHurley. Like parade organizers and cable operators, social-mediacompanies are in the business of delivering curated compilations ofspeech created, in the first instance, by others. Just as the paradeorganizer exercises editorial judgment when it refuses to include inits lineup groups with whose messages it disagrees, and just as acable operator might refuse to carry a channel that produces content it prefers not to disseminate, social-media platforms regularlymake 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 differenttypes of communities that appeal to different groups. A few examples:
- YouTube seeks to create a welcoming community forviewers" and, to that end, prohibits a wide range of content, including spam, pornography, terrorist incitement,election and public-health misinformation, and hatespeech.
- 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 considersto be hate speech, fraud or deception, nudity or sexual activity, and public-health misinformation
- Twitter aims to ensure all people can participate in thepublic conversation freely and safely" by removing content, among other categories, that it views as embodyinghate, glorifying violence, promoting suicide, or containingelection misinformation.
- Roblox, a gaming social network primarily for children,prohibits [s]ingling out a user or group for ridicule orabuse," any sort of sexual content, depictions of and support for war or violence, and any discussion of political parties or candidates.
- Vegan Forum allows non-vegans but will not toleratemembers who promote contrary agendas."
It also notes that this 1st Amendment right enables forums focused on specific political agendas as well:
And to be clear, some platforms exercise editorial judgment to promote explicitly political agendas. On the right, ProAmericaOnlypromises No Censorship | No Shadow Bans | No BS | NOLIBERALS." And on the left, The Democratic Hub says that itsonline community is for liberals, progressives, moderates, independent[s] and anyone who has a favorable opinion of Democratsand/or liberal political views or is critical of Republican ideology."
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 SupremeCourt's editorial-judgment precedents.
As for Florida's argument that since most content on social media is not vetted first, there is no editorial judgment in content moderation, the court says that's obviously incorrect.
With respect, the State's argument misses the point.The conduct" that the challenged provisions regulate-what thisentire appeal is about-is the platforms' censorship" of users'posts-i.e., the posts that platforms do review and remove or deprioritize. The question, then, is whether that conduct is expressive.For reasons we've explained, we think it unquestionably is.
There's also a good footnote debunking the claim that content moderation isn't expressive because the rules aren't intending to convey a particularized message." As the court notes, that's just silly:
To the extent that the states argue that social-media platforms lack therequisite intent" to convey a message, we find it implausible that platformswould 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 messagesthrough their content-moderation decisions-including that certain materialis harmful or unwelcome on their sites. See, e.g., Doc. 25-1 at 2 (declarationof YouTube executive explaining that its approach to content moderation isto remove content that violates [its] policies (developed with outside expertsto 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").
From there, the court digs into the idea that the two favorite cases cited regularly by both Florida and Texas in defense of these laws has any weight here. The two cases are Rumsfeld v. FAIR (regarding military recruitment on a college campus) and Pruneyard v. Robins (regarding a shopping mall where people wanted to hand out petitions). We've explained in detail in the past why neither case works here, but we'll let the 11th Circuit panel handle the details here:
We begin with the hosting" cases. The first decision towhich 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. Inthat case, though, the only First Amendment interest that the mallowner 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. TheSupreme Court's subsequent decisions in Pacific Gas and Hurleydistinguished and cabined PruneYard. The Pacific Gas plurality explained that [n]otably absent from PruneYard was any concernthat access to this area might affect the shopping center owner'sexercise of his own right to speak: the owner did not even allegethat he objected to the content of the pamphlets." 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 tobe free of unwanted expression, he nowhere alleged that his ownexpression was hindered in the slightest."); Hurley, 515 U.S. at 580(noting that the principle of speaker's autonomy was simply notthreatened in" PruneYard). Because NetChoice asserts that S.B.7072 interferes with the platforms' own speech rights by forcingthem to carry messages that contradict their community standardsand terms of service, PruneYard is inapposite.
Nice, simple, and straightforward. As for Rumsfeld v. FAIR, that is also easily different:
FAIR may be a bit closer, but it, too, is distinguishable. Inthat 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 accessto campuses and students as any other employer. 547 U.S. at 56.The schools, which had restricted recruiters' access because theyopposed the military's Don't Ask, Don't Tell" policy regardinggay servicemembers, protested that requiring them to host recruiters and post notices on their behalf violated the First Amendment.Id. at 51. But the Court held that the law didn't implicate the FirstAmendment because it neither limit[ed] what law schools may saynor require[d] them to say anything." Id. at 60. In so holding, theCourt rejected two arguments for why the First Amendmentshould apply-(1) that the Solomon Amendment unconstitutionally required law schools to host the military's speech, and (2) thatit restricted the law schools' expressive conduct. Id. at 60-61.
[....]
FAIR isn't controlling here because social-media platformswarrant First Amendment protection on both of the grounds thatthe Court held that law-school recruiting services didn't.
First, S.B. 7072 interferes with social-media platforms' ownspeech" 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-mediaplatform that exercises editorial discretion in the selection andpresentation 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 ofinformation" is speech within the meaning of the First Amendment"); Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (If the actsof disclosing' and publishing' information do not constitutespeech, it is hard to imagine what does fall within that category."(cleaned up)). 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. Because a social-media platformitself 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 toProAmericaOnly's No BS | No LIBERALS"-a law that requiresthe platform to disseminate speech with which it disagrees interferes with its own message and thereby implicates its FirstAmendment 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 meanthat conduct loses its expressive nature just because it is also accompanied by other speech." 901 F.3d at 1243-44. Rather, [t]hecritical question is whether the explanatory speech is necessary forthe reasonable observer to perceive a message from the conduct."Id. at 1244. And we held that an advocacy organization'sfood-sharing events constituted expressive conduct from which, due to thecontext surrounding them, the reasonable observer would infersome sort of message"-even without reference to the wordsFood Not Bombs" on the organization's banners. Id. at 1245.Context, we held, is what differentiates activity that is sufficientlyexpressive [from] similar activity that is not"-e.g., the act of sitting down" from the sit-in by African Americans at a Louisianalibrary" 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'tnecessary for the reasonable observer to perceive a messagefrom," for instance, a platform's decision to ban a politician or remove what it perceives to be misinformation. Id. at 1244. Suchconduct-the targeted removal of users' speech from websites whose primary function is to serve as speech platforms-conveysa message to the reasonable observer due to the context surrounding" it. Id. at 1245; see also Coral Ridge, 6 F.4th at 1254. Given thecontext, a reasonable observer witnessing a platform remove a useror item of content would infer, at a minimum, a message of disapproval. Thus, social-media platforms engage in content moderation that is inherently expressive notwithstanding FAIR
The court then takes a further hatchet to both FAIR and Pruneyard:
The State asserts that Pruneyard and FAIR-and, for thatmatter, the Supreme Court's editorial-judgment decisions-establish three guiding principles" that should lead us to conclude thatS.B. 7072 doesn't implicate the First Amendment. We disagree.
The first principle-that a regulation must interfere with thehost'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'sargument-that S.B. 7072 doesn't interfere with platforms' abilityto speak because they can still affirmatively dissociate themselvesfrom 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., adisclaimer-and thereby explicitly prohibits the very speech bywhich a platform might dissociate itself from users' messages. Fla.Stat. 501.2041(1)(b). Moreover, and more fundamentally, if theexercise of editorial judgment-the decision about whether, towhat extent, and in what manner to disseminate third-party content-is itself speech or inherently expressive conduct, whichwe have said it is, then the Act does interfere with platforms' abilityto 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").
The State's second principle-that in order to trigger FirstAmendment scrutiny a regulation must create a risk that viewersor listeners might confuse a user's and the platform's speech-findslittle support in our precedent. Consumer confusion simply isn't aprerequisite to First Amendment protection. In Miami Herald, forinstance, 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 SupremeCourt deemed the paper's editorial judgment to be protected. See418 U.S. at 244, 258. Nor was there a risk of consumer confusionin Turner: No reasonable person would have thought that the cable operator there endorsed every message conveyed by everyspeaker on every one of the channels it carried, and yet the Courtstated categorically that the operator's editorial discretion was protected. See 512 U.S. at 636-37. Moreover, it seems to us that theState's confusion argument boomerangs back around on itself: If aplatform announces a community standard prohibiting, say, hatespeech, but is then barred from removing or even disclaiming postscontaining what it perceives to be hate speech, there's a real risk that a viewer might erroneously conclude that the platform doesn'tconsider those posts to constitute hate speech.
The State's final principle-that in order to receive FirstAmendment protection a platform must curate and present speechin such a way that a common theme" emerges-is similarlyflawed. Hurley held that a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or byfailing to edit their themes to isolate an exact message as the exclusive subject matter of the speech." 515 U.S. at 569-70; see FLFNBI, 901 F.3d at 1240 (citing Hurley for the proposition that a particularized message" isn't required for conduct to qualify for FirstAmendment protection). Moreover, even if one could theoretically attribute a common theme to a parade, Turner makes clearthat no such theme is required: It seems to us inconceivable thatone could ascribe a common theme to the cable operator's choicethere to carry hundreds of disparate channels, and yet the Courtheld that the First Amendment protected the operator's editorialdiscretion....
In short, the State's reliance on PruneYard and FAIR and itsattempts to distinguish the editorial-judgment line of cases are unavailing.
How about the common carrier" argument? Nope. Not at all.
The first version of the argument fails because, in point offact, social-media platforms are not-in the nature of things, so tospeak-common carriers. That is so for at least three reasons.
First, social-media platforms have never acted like commoncarriers. [I]n the communications context," common carriers areentities that make a public offering to provide communicationsfacilities whereby all members of the public who choose to employsuch facilities may communicate or transmit intelligence of theirown design and choosing"-they don't make individualized decisions, in particular cases, whether and on what terms to deal." FCCv. Midwest Video Corp., 440 U.S. 689, 701 (1979) (cleaned up).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 bytheir community standards. In other words, Facebook is open to every individual if, but only if, she agrees not to transmit contentthat violates the company's rules. Social-media users, accordingly,are not freely able to transmit messages of their own design andchoosing" because platforms make-and have always made-individualized" content- and viewpoint-based decisions aboutwhether 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 Amendmentscrutiny to television and radio broadcasters, the Turner Court cabined that approach to broadcast" media because of its uniquephysical limitations"-chiefly, the scarcity of broadcast frequencies. 512 U.S. at 637-39. Instead of comparing cable operators toelectricity providers, trucking companies, and railroads-all entities subject to traditional economic regulation"-the Turner Courtanalogized the cable operators [in that case] to the publishers,pamphleteers, and bookstore owners traditionally protected by theFirst 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. at639. And indeed, the Court explicitly distinguished online frombroadcast media in Reno v. American Civil Liberties Union, emphasizing that the vast democratic forums of the Internet" havenever been subject to the type of government supervision and regulation that has attended the broadcast industry." 521 U.S. 844,868-69 (1997). These precedents demonstrate that social-mediaplatforms should be treated more like cable operators, which retain their First Amendment right to exercise editorial discretion, thantraditional common carriers.
Finally, Congress has distinguished internet companies fromcommon carriers. The Telecommunications Act of 1996 explicitlydifferentiates interactive computer services"-like social-mediaplatforms-from common carriers or telecommunications services." See, e.g., 47 U.S.C. 223(e)(6) (Nothing in this section shallbe construed to treat interactive computer services as common carriers or telecommunications carriers."). And the Act goes on toprovide protections for internet companies that are inconsistentwith the traditional common-carrier obligation of indiscriminateservice. In particular, it explicitly protects internet companies' ability to restrict access to a plethora of material that they might consider objectionable." Id. 230(c)(2)(A). Federal law's recognitionand protection of social-media platforms' ability to discriminateamong messages-disseminating some but not others-is strongevidence that they are not common carriers with diminished FirstAmendment rights.
Okay, but what if Florida just declares them to be common carriers? No, no, that's not how any of this works either:
If social-media platforms are not common carriers either infact or by law, the State is left to argue that it can force them tobecome common carriers, abrogating or diminishing the FirstAmendment 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 commoncarrier. Quite the contrary, if social-media platforms currently possess the First Amendment right to exercise editorial judgment,as we hold it is substantially likely they do, then any law infringingthat right-even one bearing the terminology of commoncarri[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, 518U.S. 727, 825 (1996) (Thomas, J., concurring in the judgment in partand dissenting in part) (Labeling leased access a common carrierscheme has no real First Amendment consequences.");CablevisionSys. 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 dumbpipes' 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 . . . tooperate as common carriers?")
Okay, then, how about that these websites are somehow so important that it magically means the state can regulate speech on them. Lol, nope, says the court:
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 commoncarriers." Br. of Appellants at 36; see Knight, 141 S. Ct. at 1223(Thomas, J., concurring) (noting that the Court has suggested thatcommon-carrier regulations may be justified, even for industriesnot historically recognized as common carriers, when a business. . . rises from private to be a public concern" (quotation marksomitted)). That might be true for an insurance or telegraph company, whose only concern is whether its property" becomes themeans of rendering the service which has become of public interest." Knight, 141 S. Ct. at 1223 (Thomas, J., concurring) (quotingGerman All. Ins. Co. v. Lewis, 233 U.S. 389, 408 (1914)). But theSupreme Court has squarely rejected the suggestion that a privatecompany engaging in speech within the meaning of the FirstAmendment loses its constitutional rights just because it succeeds in the marketplace and hits it big. See Miami Herald, 418 U.S. at251, 258.
In short, because social-media platforms exercise-and havehistorically exercised-inherently expressive editorial judgment,they aren't common carriers, and a state law can't force them toact as such unless it survives First Amendment scrutiny.
So many great quotes in all of this.
Anyway, once the court has made it clear that content moderation is protected by the 1st Amendment, that's not the end of the analysis. Because there are some cases in which the state can still regulate, but first it must pass strict scrutiny. And here, the court says, we're not even close:
We'll start with S.B. 7072's content-moderation restrictions.While some of these provisions are likely subject to strict scrutiny,it is substantially likely that none survive even intermediate scrutiny. When a law is subject to intermediate scrutiny, the government must show that it is narrowly drawn to further a substantialgovernmental interest . . . unrelated to the suppression of freespeech." FLFNB II, 11 F.4th at 1291. Narrow tailoring in this context means that the regulation must be no greater than is essentialto the furtherance of [the government's] interest." O'Brien, 391U.S. at 377.
We think it substantially likely that S.B. 7072's content-moderation restrictions do not further any substantial governmental interest-much less any compelling one. Indeed, the State's briefingdoesn't even argue that these provisions can survive heightenedscrutiny. (The State seems to have wagered pretty much everything on the argument that S.B. 7072's provisions don't trigger FirstAmendment scrutiny at all.) Nor can we discern any substantial orcompelling interest that would justify the Act's significant restrictions on platforms' editorial judgment. We'll briefly explainand reject two possibilities that the State might offer.
As for the argument that the state has to protect those poor, poor conservatives against unfair" censorship, the court points out that's not how this works:
The State might theoretically assert some interest in counteracting unfair" private censorship" that privileges someviewpoints over others on social-media platforms. See S.B. 7072 1(9). But a state may not burden the speech of others in orderto tilt public debate in a preferred direction," Sorrell, 564 U.S. at578-79, or advance some points of view," Pacific Gas, 475 U.S. at20 (plurality op.). Put simply, there's no legitimate-let alone substantial-governmental interest in leveling the expressive playingfield. Nor is there a substantial governmental interest in enablingusers-who, remember, have no vested right to a social-media account-to say whatever they want on privately owned platformsthat would prefer to remove their posts: By preventing platformsfrom conducting content moderation-which, we've explained, isitself expressive First-Amendment-protected activity-S.B. 7072restrict[s] the speech of some elements of our society in order toenhance the relative voice of others"-a concept wholly foreignto the First Amendment." Buckley v. Valeo, 424 U.S. 1, 48-49(1976). At the end of the day, preventing unfair[ness]" to certainusers or points of view isn't a substantial governmental interest;rather, private actors have a First Amendment right to be unfair"-which is to say, a right to have and express their own pointsof view. Miami Herald, 418 U.S. 258.
How about enabling more speech? That's not the government's job either:
The State might also assert an interest in promoting thewidespread dissemination of information from a multiplicity ofsources." Turner, 512 U.S. at 662. Just as the Turner Court heldthat the must-carry provisions served the government's substantialinterest in ensuring that American citizens were able to access theirlocal broadcasting outlets," id. at 663-64, the State could argue that S.B. 7072 ensures that political candidates and journalistic enterprises are able to communicate with the public, see Fla. Stat. 106.072(2); 501.2041(2)(f), (j). But it's hard to imagine how theState could have a substantial" interest in forcing large platforms-and only large platforms-to carry these parties' speech:Unlike the situation in Turner, where cable operators had bottleneck, or gatekeeper control over most programming delivered intosubscribers' homes," 512 U.S. at 623, political candidates and largejournalistic enterprises have numerous ways to communicate withthe public besides any particular social-media platform that mightprefer not to disseminate their speech-e.g., other more-permissive platforms, their own websites, email, TV, radio, etc. See Reno,521 U.S. at 870 (noting that unlike the broadcast spectrum, the internet can hardly be considered a scarce' expressive commodity"and that [t]hrough the use of Web pages, mail exploders, andnewsgroups, [any] individual can become a pamphleteer"). Evenif other channels aren't as effective as, say, Facebook, the State hasno substantial (or even legitimate) interest in restricting platforms'speech-the messages that platforms express when they removecontent they find objectionable-to enhance the relative voice" ofcertain candidates and journalistic enterprises. Buckley, 424 U.S. at48-49
Another nice bit of language: the court says that the government can't force websites to not use an algorithm to rank content (which is a big deal as many states are trying to do just that):
Finally, there islikely no governmental interest sufficient to justify forcing platforms to show content to users in a sequential or chronological"order, see 501.2041(2)(f), (g)-a requirement that would preventplatforms from expressing messages through post-prioritizationand shadow banning.
Finally, there's a great footnote that recognizes the problems we pointed out with regards to Texas' law and the livestream of the mass murderer in Buffalo. The Court recognizes how the same issue could apply in Florida:
Even worse, S.B. 7072 would seemingly prohibit Facebook or Twitter fromremoving a video of a mass shooter's killing spree if it happened to be reposted by an entity that qualifies for journalistic enterprise" status.
And, that's basically it. As noted up top, there are a few, fairly minor provisions that the court says should not be subject to the injunction, and we'll have another post on that shortly. But for now, this is a pretty big win for the 1st Amendment, actual free speech, and the rights of private companies to moderate as they see fit.
Hilariously, Florida is pretending it won the ruling, because of the few smaller provisions that are no longer subject to the injunction. But this is a near complete loss for the state, and a huge win for free speech.