11th Circuit’s Ruling to Uphold Injunction Against Florida’s Social Media Law is a Win Amid a Growing Pack of Bad Online Speech Bills

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There’s a lot to like in the 11th Circuit Court of Appeal’s ruling that much of Florida’s social media law—the parts which would prohibit internet platforms from removing or moderating any speech by or about political candidates or by “journalistic enterprises”—likely violate the First Amendment and should remain on hold. The decision is a win for free speech that stands in stark contrast with a 5th Circuit Court of Appeals May 12 ruling allowing a similar, constitutionally questionable Texas law to go into effect.

While an emergency application to block the Texas law is pending before the Supreme Court (we filed a brief urging the court to put it back on hold), we are relieved by the 11th Circuit’s ruling in NetChoice v. Florida. The court recognized two crucial First Amendment principles flouted by Florida’s law: that platforms are private actors making editorial decisions, and that those decisions are inherently expressive. When platforms remove or deprioritize posts, they are engaging in First Amendment-protected speech, the court said.

Tornillo Shows the Way

Florida S.B. 7072, signed into law by Gov. Ron DeSantis a year ago, prohibits large online intermediaries from terminating politicians’ accounts or taking steps to deprioritize posts by or about them or posts by “journalistic enterprises” (defined to include entities that have sufficient publication and viewership numbers). The law would override the sites’ own content policies. Florida passed the law to retaliate against platforms for supposedly censoring conservative voices. Interestingly, the 11th Circuit noted that the perceived bias in platforms’ content-moderation decisions “is compelling evidence that those decisions are indeed expressive” First Amendment-protected conduct.

In ruling that the law likely violates the First Amendment, the 11th Circuit pointed to the Supreme Court’s unanimous 1974 ruling in Miami Herald v. Tornillo, which established that the editorial ju

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