11th Circuit Finds Social Media Moderation Decisions are Protected Speech

Social media platforms prevailed on Monday when the Eleventh Circuit upheld an injunction against a Florida law limiting social media platforms’ ability to deplatform users. The 67-page opinion held that content-moderation decisions are a protected exercise of editorial judgment that the Florida law unconstitutionally burdened.

The suit was filed by NetChoice LLC and Computer & Communications Industry Association, two trade groups who pursued the case on behalf of their members, social media providers. They challenged S.B. 7072, which, in the words of the signing statement, sought to fight back against “the ‘biased silencing’ of ‘our freedom of speech as conservatives … by the ‘big tech’ oligarchs in Silicon Valley.’” Its provisions purportedly fell into three categories: content-moderation restrictions, disclosure obligations, and a user-data requirement.  

Most problematically, the opinion said it prohibited deplatforming candidates for state-wide and other offices with fines of up to $250,000 per day enforced by the Florida Elections Commission.

Last July, a Tallahassee, Fl. federal judge enjoined the law as violative of the trade association members’ free speech rights. In this week’s opinion, the panel held that even the largest social media platforms are private actors and their content moderation decisions fall within the protected exercise of editorial judgment. “[T]he provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative,” the decision said.

The judges further held that it was likely that the law’s “particularly onerous” disclosure provisions requiring platforms to provide a “thorough rationale” for every single content-moderation decision violate the First Amendment. As such, the court upheld the preliminary injunction prohibiting the enforcement of both the content-moderation provisions and the disclosure provision.

However, other “far less burdensome” requirements survived, including a user data provision allowing deplatformed users to access or retrieve their content for up to 60 days

The trade associations are represented by Kirkland & Ellis LLP, Wilson Sonsini Goodrich & Rosati and DLA Piper. They are parties to another suit proceeding in the Fifth Circuit, where a New Orleans, La. panel recently allowed a similar law to take effect pending appeal.

The Florida Elections Commission defendants and Attorney General Ashley Moody are represented by the Office of the Attorney General of Florida. The other officials are represented by Cooper & Kirk PLLC and the Executive Office of Governor Ron DeSantis.