The August 13, 2021 Trending Law Blog post discussed how, in NetChoice, LLC v. Attorney General, State of Florida, the United States District court for the Northern District of Florida enjoined Florida from enforcing a law that targeted some, but not all, social media platforms based on the content of the speech hosted on their websites. Thereafter, the September 8, 2022 Trending Law Blog post discussed how in December 2021 a federal court in Texas enjoined enforcement of a law in the case of NetChoice, LLC v. Paxton which would have limited a large number of social media companies from moderating content. The Florida case was ultimately appealed to the United States Court of Appeals for the Eleventh Circuit while the Texas case was appealed to the United States Court of Appeals for the Fifth Circuit.
On May 23, 2022, the Eleventh Circuit issued its decision in the Florida NetChoice, LLC appeal. The issue for the Eleventh Circuit was “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 court resolved the issue in favor of the social media platforms, stating, among other things, that “We hold that it is substantially likely that social-media companies – even the biggest ones – are ‘private actors’ whose rights the First Amendment protects . . . 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.” Thus, the Eleventh Circuit held that the social media companies were entitled to the preliminary injunction issued by the district court.
Several months later, on September 16, 2022, the Fifth Circuit issued its decision in the Texas NetChoice LLC appeal. This appeal involved a Texas statute which generally prohibited “large social media platforms from censoring speech based on the viewpoint of its speaker.” The social media platforms filed suit to declare the statute facially unconstitutional in all circumstances based on the First Amendment. In its September 16 decision, the Fifth Circuit rejected the platforms’ argument, characterizing it as “a rather odd inversion of the First Amendment” because, although the First Amendment “protects every person’s right to ‘the freedom of speech’,” the court did not agree with the platforms’ position “that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.” Thus, the Fifth Circuit upheld the constitutionality of the Texas statute and rejected “the idea that corporations have a freewheeling First Amendment right to censor what people say.” The Fifth Circuit vacated the district court’s injunction.
Five days after the Fifth Circuit issued its NetChoice decision with regard to the Texas statute, on September 21, 2022, the Attorney General of Florida filed a petition for a writ of certiorari with the Supreme Court to appeal the decision of the Eleventh Circuit. NetChoice filed its own petition for a writ of certiorari in the case on October 24, 2022. It remains to be seen if either parties’ petition will be granted, but, given the conflicting decisions between the Fifth and Eleventh Circuits, and the important First Amendment issues at stake, this seems like a good opportunity for the Supreme Court to resolve the issue of whether the First Amendment protects social media platforms from restrictions imposed by the states seeking to regulate how these companies moderate the content on their platforms. Hopefully, the issue will be resolved one way or another in 2023.
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