Litigants in Florida Social Media Law Appeal Ask for Continued Enforcement Stay Pending Certiorari Petition

A joint stipulation filed last Thursday week asked the Eleventh Circuit Court of Appeals to keep a contested social media censorship law imposed on the biggest platforms like Facebook, TikTok, Twitter, and others, on pause until the State of Florida’s petition for certiorari is due next month. The court granted the request a day later.

The parties asked for the continued stay after the Eleventh Circuit ruled that Florida’s law limiting social media platforms’ ability to de-platform users was unconstitutional, and after a Fifth Circuit panel upheld a Texas law making similar restrictions. The appellate court losers, in the Eleventh Circuit case, Florida, and in the Fifth Circuit case, Netchoice LLC and Computer & Communications Industry Association, trade groups pursuing the case on behalf of their social media platform members, both appealed to the Supreme Court.

The case in which the instant motion was filed concerns Florida’s S.B. 7072 which purported to take “action to ensure that ‘We the People’—real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites” and to check the “Big Tech censors” that “discriminate in favor of the dominant Silicon Valley ideology,” according to Governor Ron DeSantis’ signing statement. Its provisions included content-moderation restrictions, disclosure obligations, a user-data requirement, and featured a prohibition on de-platforming candidates for state-wide and other offices with fines of up to $250,000 per day.

The Eleventh Circuit, affirming the findings of a Florida federal judge last July, said the law infringed social media platforms’ protected exercises of editorial judgment because it unconstitutionally burdened their ability to engage in content moderation. However, the appellate court declined to preliminarily enjoin “far less burdensome” disclosure provisions because the panel found it unlikely that they violate the First Amendment.

The Fifth Circuit found otherwise as to the constitutionality of similar provisions of the Texas law in a single sentence order. Shortly thereafter, a 5-4 majority of the Supreme Court agreed to pause enforcement of the law until the justices decide the case on the merits.

Last week’s stay extension request noted that “this case involves Florida’s social media law that, like a pending appeal in the Fifth Circuit involving a similar law from Texas, presents ‘issues of great importance that will plainly merit [Supreme Court] review,’” as Justice Alito expressed in dissenting from the majority’s decision to halt the Texas law from going into effect.

The motion added that in the Florida law case, “[t]he parties share the view that further review in the Supreme Court is warranted.” As such, they agreed to the stay, which will be until September 21 when Florida’s Supreme Court petition is due.

The trade associations are represented by Kirkland & Ellis LLP, Wilson Sonsini Goodrich & Rosati, Clement & Murphy PLLC, and DLA Piper

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.