A majority of U.S. states are considering enacting laws that regulate social media platforms. To date, two states—Florida and Texas—have passed such laws. The laws limit the power of the largest social media companies to moderate and curate speech on their platforms, and they require the companies to disclose certain information to the public. Two trade organizations representing the social media companies are challenging both laws. Federal district courts enjoined each law, holding that the companies were likely to succeed on their First Amendment challenges, and the cases were appealed.
On May 23, 2022, the Eleventh Circuit struck down the part of the Florida law that limits the power of social media platforms to moderate and curate content, but upheld the law’s disclosure provisions. On September 16, 2022, the Fifth Circuit, in contrast, upheld Texas’s law in its entirety.
The Knight Institute filed amicus briefs in both cases: this case when it was pending before the Eleventh Circuit (Moody v. NetChoice), and the Texas case when it was pending before Fifth Circuit (NetChoice, LLC v. Paxton), which you can read more about here.
On November 15, 2021, the Knight Institute filed an amicus brief in the Eleventh Circuit in support of the social media platforms’ challenge to Florida’s law. The brief argues that the court should invalidate the law on narrow grounds, and that if the court does so, it need not address the categorical, all-or-nothing arguments offered by the parties about the First Amendment rights of social media platforms. The brief further argues that, if the court does address these arguments, it should reject them both, because they are inconsistent with controlling caselaw, and because neither of them would serve First Amendment values well in the digital age. Adopting Florida’s position would give the government sweeping authority over the digital public sphere and impede social media companies from addressing real harms online, while adopting the platforms’ position would make it difficult or impossible for governments to enact even carefully drawn laws intended to protect the free speech and privacy rights of the platforms’ users, and to ensure that our system of free expression serves democracy.
Status: On May 23, 2022, the Eleventh Circuit struck down the must-carry provision of Florida's social-media law, but upheld most of the transparency provisions under the Supreme Court's decision in Zauderer. On September 21, 2022, Florida filed a petition seeking Supreme Court review. On October 24, 2022, NetChoice and CCIA filed a conditional cross petition.
Case Information: Moody, Attorney General of Florida, et al. v. NetChoice, LLC, No. 21-12355 (11th Cir.), No. 22-277 (Supreme Court), No. 22-393 (Supreme Court).