Content Moderation Circuit Split: NetChoice v. Attorney General, State of Florida and NetChoice v. Paxton.

• Author: Bernhard, Emily

34 F.4TH 1196 (11TH CIR. 2022)

49 F.4TH 439 (5TH CIR. 2022)

In 2021, both Florida and Texas enacted statutes to curtail social media platforms' ability to moderate content on their sites. (1) These statutes were intended to mitigate anti-conservative bias on social media platforms and restrict their ability to deplatform or deprioritize conservative content. (2) Plaintiffs NetChoice and Computer & Communications Industry Association (referred to collectively as "NetChoice") are trade associations that represent social media companies such as Facebook, Twitter, and Google. (3) NetChoice challenged these laws, arguing that restricting social media platforms' ability to moderate content unconstitutionally infringes on the platforms' First Amendment free speech rights. (4) The district courts in both cases granted plaintiffs' motions for preliminary injunctions and both Florida and Texas appealed these rulings. (5) The Eleventh Circuit reviewed the constitutionality of the Florida statute and affirmed the district court's decision, holding that social media platforms are private actors with constitutionally protected free speech rights, and they are acting within these rights when they make editorial judgements about the content they allow on their sites. (6) The Fifth Circuit reviewed the Texas statute and came to the opposite conclusion, holding that because these companies have such dominant market share and the vast majority of posts go unreviewed, they should be treated as common carriers that are subject to nondiscrimination requirements. (7)

1. ELEVENTH CIRCUIT

   1. Background

      On May 24, 2021, the State of Florida enacted S.B. 7072, which aimed to limit social media platforms' ability to moderate content on their sites. (8) S.B. 7072 was signed by Governor DeSantis in his purported effort to "fight [ ] against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative." (9) NetChoice sought to enjoin enforcement of [section][section] 106.072 and 501.2041 of the law, which imposed liability on social media platforms for their decisions to remove content or users from their sites. (10) NetChoice argued that these provisions: (i) violate their First Amendment free speech rights, and (ii) are preempted by federal law. (11) The district court granted plaintiffs' motion to enjoin [section][section] 106.072 and 501.2041, which Florida appealed. (12)

   2. Analysis

      In its appeal, the State argued that the Florida law was not preempted by federal law and that plaintiffs' First Amendment rights were not violated because the conduct at issue does not constitute protected speech under the First Amendment. (13) NetChoice argued that by restricting social media platforms'...