Earlier this year, Florida enacted Senate Bill 7072 – The Stop Social Media Censorship Act – which imposed requirements and prohibitions on some, but not all, social media platforms relating to the speech hosted on their websites. The Act was scheduled to take effect on July 1, 2021, but on June 30, 2021, Judge Robert L. Hinkle of the United States District Court for the Northern District of Florida entered a preliminary injunction in NetChoice LLC, et al. v. Ashley Brooke Moody, et al., which enjoined various Florida officials from taking any steps to enforce the Act because he found the view-point based legislation was preempted by federal law and violated the First Amendment.
The Florida legislation at issue, among other things, prohibited social media platforms from:
- Barring candidates for office from their sites;
- Using an algorithm to put a candidate’s posts in the feed of a user who wished to receive it or to exclude the post from the feed of a user who does not wish to receive it;
- Taking action to “censor, deplatform or shadow ban” a “journalistic enterprise” based on the content of its publication or broadcast; and
- Changing their user rules, terms and agreements more often than every 30 days
The legislation also required social media platforms to:
- Allow users who post content to dictate how it is shown regardless of how the social media platform or recipient of posts want to receive user posts;
- Post its standards for how they censor, deplatform or shadow ban users; and
- Provide certain other information to users of the platforms.
In ruling that the plaintiffs (trade associations whose members included social media providers affected by the legislation) had demonstrated a likelihood of success on the merits to warrant the entry of the preliminary injunction, Judge Hinkle first found that 47 U.S.C. §230 allows providers of interactive computer services, i.e., social media providers, to moderate their own content and prohibits states from making laws inconsistent with §230.
Judge Hinkle also held that the plaintiffs would likely prevail on their claims that the Florida laws violated the First Amendment. First, he held that the social media providers’ actions did not violate the First Amendment. He then ruled that the First Amendment applies to speech over the internet “just as it applies to more traditional forms of communication.” The court also found case precedent established that a private party that creates or uses its editorial judgment to select content for publication cannot be required by the government to also publish other content in the same manner. Accordingly, the court granted the plaintiffs’ motion for a preliminary injunction.
All of the defendants in the NetChoice case filed a Notice of Appeal on July 12, 2021. Thus, the United States Court of Appeals for the Eleventh Circuit will have the next word on the constitutionality of Florida’s Stop Social Media Censorship Act sometime in the future.