An Eleventh Circuit case challenging a Florida law that regulates social media platforms
On November 15, 2021, the Knight Institute filed an amicus brief in a case pending before the Eleventh Circuit, NetChoice LLC v. Attorney General, State of Florida. This case challenges a Florida law—the first of its kind in the nation—that limits the power of social media companies to moderate speech on their platforms.
The Florida law applies only to a subset of the largest social media companies, expressly excluding any such company under common ownership with a Florida theme park, an obvious reference to Disney. The statute appears to have been gerrymandered to ensure that its burdens fall principally on platforms believed to have a liberal bias (e.g., Twitter and Facebook), and prohibits them from engaging in a broad range of content moderation and other activities. The district court enjoined the Florida law, holding that the social media companies were likely to succeed in their First Amendment challenge. The Court concluded that the Florida law discriminates against social media companies based on their viewpoint, and that the law is therefore subject to strict scrutiny, which it cannot survive.
The amicus brief argues that the Eleventh Circuit should uphold the district court’s decision on narrow grounds, and that if the Eleventh Circuit takes this approach, it need not address the parties’ broader, “all” or “nothing” arguments about the First Amendment rights of social media platforms. The brief further suggests that if the Court decides to address these arguments, it should reject them both, because they are inconsistent with controlling caselaw, but also 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, due process, and privacy rights of platforms’ users, and to ensure that our system of free expression serves democracy.
Status: Defendants-Appellants’ brief filed on September 7, 2021; Plaintiffs-Appellees’ brief filed on November 8, 2021.
Case Information: NetChoice, LLC, v. Attorney General, State of Florida, No. 21-12355 (11th Cir.).