Online communications platforms have a First Amendment right to choose what content they host. Yet in the last few years, Republicans at the federal and state level have distorted this well‐established right in order to justify efforts to force social media platforms to host content that the government favors. A much‐needed victory for internet freedom came from the Eleventh Circuit this week, when a three‐judge panel unanimously rejected one of these Republican‐led efforts. The decision repudiated the flawed legal theories offered in support of both Florida’s law and others like it.
The law at issue, SB 7072, was enacted by Florida last year to prevent the alleged “silencing” of conservatives by “Silicon Valley oligarchs.” Under the law, social media companies are required, among other things, to host all content from registered political candidates and “journalistic enterprises,” regardless of whether that content violates the platform’s terms of service. The law authorizes penalties of up to $250,000 for each instance of noncompliance.
NetChoice and CCIA, two trade associations of online businesses, sued Florida immediately after the law’s passage, arguing that the law violated platforms’ First Amendment right to choose what speech they publish. A district court agreed and preliminarily enjoined the law. And now, in a well‐reasoned 67‐page opinion, the Eleventh Circuit has affirmed that injunction of all of SB 7072’s content‐moderation provisions. In the process, the court reaffirmed three critical First Amendment principles and corrected Florida’s misconceptions of First Amendment doctrine.
First, the court reminded Florida that the First Amendment was written to protect private actors, not to empower the government to control them. Providing that “Congress shall make no law … abridging the freedom of speech, or of the press,” the First Amendment naturally prohibits the government from censoring private speech and media. Yet Florida tried to convert the First Amendment from a shield to protect private actors from government abuse into a sword for the government to wield against privately‐owned media platforms, arguing that SB 7072 “is about 22 million Floridians and their First Amendment rights.” The Eleventh Circuit rejected this distorted reasoning, explaining that “platforms are private enterprises, not governmental entities,” and that “the government can’t tell a private person or entity what to say or how to say it.”
Florida, like other states pushing similar laws, argued that it has a legitimate First Amendment interest in counteracting “unfair” private “censorship” that privileges some viewpoints over others on social media platforms. But a state may not burden the speech of certain people or entities in order to tilt public debate in the direction it prefers. And as the court noted, “there’s no legitimate governmental interest in leveling the expressive playing field … By preventing platforms from conducting content moderation, S.B. 7072 ‘restrict[s] the speech of some elements of our society in order to enhance the relative voice of others.’” This is a concept the Supreme Court has considered “wholly foreign to the First Amendment” since Buckley v. Valeo (1976).
Second, the court confirmed that content moderation is protected First Amendment activity: “when a platform selectively removes what it perceives to be incendiary political rhetoric, pornographic content, or public‐health misinformation, it conveys a message and thereby engages in ‘speech’ within the meaning of the First Amendment.” The Eleventh Circuit correctly answered the core question underlying most attempts to regulate social media today: whether content moderation is a type of editorial speech protected by the First Amendment.
The Supreme Court has explicitly protected the First Amendment right to editorial judgment since its 1974 ruling in Miami Herald v. Tornillo. And the Supreme Court’s ruling in Reno v. ACLU (1997) confirmed that First Amendment rights apply with full force to internet media and, per Brown v. Entertainment Merchants Association, (2011) “do not vary when a new medium appears.” This point is crucial: if courts were to (wrongly) hold that online content moderation is not protected First Amendment activity, states could seemingly force websites to host (or forbid them from hosting) any content the government pleases, depriving expression in cyberspace of First Amendment protection.
The Eleventh Circuit also dismissed Florida’s bizarre attempts to deny platforms First Amendment protection on a theory that the platforms had failed to meet certain supposed prerequisites for First Amendment protection. This includes curating user speech in such a way that a “common theme” emerges, and establishing a likelihood that users “might confuse a user’s and the platform’s speech.” In fact, neither is a prerequisite for protection. As the court noted, the First Amendment is much less selective than Florida argued. Its protection kicks in when actors engage in First Amendment‐protected activity—no other prerequisites necessary.
Third, the court unequivocally rejected Florida’s attempt to unilaterally dispense with the platforms’ First Amendment rights by deeming them “common carriers.” Common carriers are a narrow category of non‐expressive “neutral conduits,” like commodity freight carriers or taxi cabs, that provide service to the public indiscriminately. Although no court has squarely held that entities like these receive diminished editorial and speech rights, politicians seeking to regulate internet platforms have attempted to use common carriage doctrine as a means to circumvent the First Amendment.
Rejecting Florida’s attempt to abrogate civil liberties via common carriage doctrine, the court correctly pointed out that Florida’s own account of the platforms’ activities is fundamentally at odds with the common law definition of “common carrier.” These platform activities include publishing, removing, promoting, demoting, blocking, and labeling certain posts, as well as requiring users of the platforms to comply with their terms of service. Far from being “neutral conduit[s],” social media platforms’ curation of the content they host was the very reason for SB 7072’s passage. The court rightfully emphasized that arbitrarily expanding the definition of “common carrier” does not create a First Amendment‐free zone for SB 7072 to operate in: “neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier.”
In a footnote, the decision also predicted the harm SB 7072’s must‐carry mandate could impose on the public interest, providing that SB 7072’s “provisions would apply, for instance, even if a candidate repeatedly posted obscenity, hate speech, and terrorist propaganda.” The court is right: most users do not want to be forced to view vile, violent, or harassing content when they go on Facebook. In fact, as Cato noted in an amicus brief about a similar law from Texas last week, the enjoyable use of the platforms could be precluded entirely for many people by having to view this kind of material. SB 7072 would effectively force platforms to either host all repugnant content posted by candidates and “journalistic enterprises,” or face liability for up to $250,000 for removing each post.
Just two weeks before the Eleventh Circuit’s decision, the Fifth Circuit lifted a preliminary injunction on a similar law from Texas. This potentially signals an incipient circuit split on whether the First Amendment prohibits the government from forcing social media platforms to host certain content. If so, it is likely that the Supreme Court will weigh in to resolve the disagreement.
How the Supreme Court would rule in such a case is unclear: Justice Thomas seemed sympathetic towards Florida’s “common carrier” argument in his Biden v. Knight concurrence. Justice Kavanaugh signaled the opposite as a D.C. Circuit judge when he rhetorically asked in his U.S. Telecom v. FEC dissent whether “the Government [can] really impose forced‐carriage or equal‐access obligations on YouTube and Twitter?” It is clear, however, that the decision will have profound effects for civil liberties on the internet. The Supreme Court should take the same path as the Eleventh Circuit and reject Republican efforts to distort and undermine the First Amendment.
