As the Supreme Court weighs whether to block Texas' social media "censorship" law, a court of appeals has decided to uphold the injunction on a similar Florida law, finding that social media companies "are 'private actors' whose rights the First Amendment protects."
The 11th Circuit ruling comes in response to a lawsuit brought by NetChoice and CCIA, the same trade groups who filed an emergency application with Supreme Court Justice Samuel Alito after a similar Texas social media law went into effect earlier this month. The court found that Florida's argument that social media giants are not entitled to First Amendment rights doesn't hold up.
"Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube, or TikTok," the court wrote in its opinion. "But 'whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.'”
The opinion stands in stark contrast to the Fifth Circuit's decision to lift an injunction on Texas' law earlier this month without so much as a sentence of explanation. That decision created potentially catastrophic consequences for the tech industry, leading NetChoice and CCIA to file an emergency application asking the Supreme Court to stay the Fifth Circuit's decision. The Supreme Court has yet to issue its decision, which could come any day now.
The 11th Circuit's decision on the Florida law upheld an injunction on parts of the law that would prohibit companies from "deplatforming" political candidates, prioritizing or deprioritizing posts "by or about" political candidates and removing any content by a "journalistic enterprise." It also blocks provisions that require companies to provide a “thorough rationale” for every content moderation decision.
But the court did allow the other disclosure provisions in the law — which includes having clear content standards and allowing users to access their data — to stand, finding that they are "far less burdensome" and unlikely to violate the First Amendment.
Whatever the Supreme Court decides with regard to the emergency application in Texas, the Florida decision tees up a possible circuit split in the event that the Texas law, which is still awaiting appeal, is upheld. That could create an opportunity for the Supreme Court to decide once and for all whether social media platforms enjoy First Amendment rights or whether they should be, as Justice Clarence Thomas has suggested, considered common carriers of a new age.
The tech groups behind both lawsuits were encouraged by the Florida decision and what it could mean for the Supreme Court's forthcoming decision. “The First Amendment protects platforms and their right to moderate content as they see fit—and the government can’t force them to host content they don’t want," NetChoice Vice President Carl Szabo said in a statement. “This makes it even more likely that the US Supreme Court will overturn the 5th Circuit’s split decision on the similar Texas law.”