In May of this year, Florida enacted a law imposing severe restrictions on the editorial freedom of large social media platforms. The law requires such platforms to display any and all posts by registered political candidates and “journalistic enterprises,” even if such posts violate the platforms’ rules of conduct. The law also allows platforms to be sued under a claim that they have not treated posts “consistently,” exposing them to liability of up to $100,000 per post.

NetChoice, a trade association of online businesses, brought a First Amendment suit in federal court against Florida, arguing that the law infringes on private platforms’ right to exercise editorial discretion over the content they host. The district court ruled in favor of NetChoice and preliminarily enjoined the law. Florida appealed to the U.S. Court of Appeals for the Eleventh Circuit, and Cato has now filed an amicus brief supporting NetChoice.

In the brief, we argue that although social media may be a relatively new medium, long-established First Amendment principles apply to this case. Platforms have a First Amendment right to select and organize the content they host, just as newspapers and book publishers have a right to select the editorials and manuscripts they print. And platforms likewise have a right to decline to host content, a right that Florida has infringed in multiple ways.

As we explain, this editorial right is not contingent on a platform’s prior exercise of the right, nor on whether a platform aims to present a “unified” message. Florida and its judges may not police the exercise of that right or assume the role of content moderator for themselves.

Further, we explain in the brief that the success of alternative platforms depends on their ability to compete and on the freedom of those building new platforms to develop new products. Neutrality requirements attached to potentially ruinous monetary liability prevent the emergence of smaller platforms with distinct, differentiable offerings. Under regimes of heavy regulation like the one Florida wishes to impose, only large and established platforms with the means to defend themselves in court will be able to survive.

Whatever disagreement one may have with the editorial choices a particular platform has made, shifting control over those choices to the state is not the answer. The Eleventh Circuit should affirm the district court’s preliminary injunction.