Fifth and Eleventh Circuit cases challenging new laws regulating social media platforms
The Knight Institute has filed amicus briefs in two cases challenging recently enacted regulations of the social media platforms: one pending in the Fifth Circuit (NetChoice, LLC v. Paxton), and another pending in the Eleventh Circuit (NetChoice, LLC v. Attorney General, State of Florida).
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 are now on appeal.
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.
On April 8, 2022, the Knight Instituted filed an amicus brief in the Fifth Circuit in support of NetChoice’s challenge to Texas’s law. The brief similarly urges the court to reject the parties’ all-or-nothing arguments. It then argues that the Texas law’s key provision—which prohibits social media platforms from removing or labelling user posts—violates the First Amendment. And it argues that the law’s provisions requiring social media companies to disclose information about how they moderate and curate user content should be evaluated under the legal framework set out in the Supreme Court’s Zauderer decision, which applies deferential scrutiny to laws compelling companies to disclose factual and uncontroversial information about their services.
Status of Florida suit: Fully briefed in the Eleventh Circuit; oral argument scheduled for April 28, 2022.
Status of Texas suit: Plaintiffs–Appellees’ brief filed April 1, 2022; oral argument scheduled for May 9, 2022.
Case Information: NetChoice, LLC, v. Att'y General, State of Fla., No. 21-12355 (11th Cir.), NetChoice, LLC, v. Paxton, No. 21-51178 (5th Cir.).