34 F.4th 1196
Eleventh Circuit
NETCHOICE, LLC,
v.
ATTORNEY GENERAL, State of FLORIDA.
5/23/2022
Before Newsom, Tjoflat, and Ed Carnes, Circuit Judges.
Newsom, Circuit Judge:
*1203 Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube, or TikTok. 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.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) (quotation marks omitted). One of those “basic principles”—indeed, the most basic of the basic—is that “[t]he Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.” Manhattan Cmty. Access Corp. v. Halleck, ––– U.S. ––––, 139 S. Ct. 1921, 1926, 204 L.Ed.2d 405 (2019). Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.
The question at the core of this appeal is whether the Facebooks and Twitters of the world—indisputably “private actors” with First Amendment rights—are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida insists that they aren’t, and it has enacted a first-of-its-kind law to combat what some of its proponents perceive to be a concerted effort by “the ‘big tech’ oligarchs in Silicon Valley” to “silenc[e]” “conservative” speech in favor of a “radical leftist” agenda. To that end, the new law would, among other things, prohibit certain social-media companies from “deplatforming” political candidates under any circumstances, prioritizing or deprioritizing any post or message “by or about” a candidate, and, more broadly, removing anything posted by a “journalistic enterprise” based on its content.
We hold that it is substantially likely that social-media companies—even the biggest ones—are “private actors” whose rights the First Amendment protects, Manhattan Cmty., 139 S. Ct. at 1926, that their so-called “content-moderation” decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative. We further conclude that it is substantially likely that one of the law’s particularly onerous disclosure provisions—which would require covered platforms to provide a “thorough rationale” for each and every content-moderation decision they make—violates the First Amendment. Accordingly, we hold that the companies are entitled to a preliminary injunction prohibiting enforcement of those provisions. Because we think it unlikely that the law’s remaining (and far less burdensome) disclosure provisions violate the First Amendment, we hold that the companies are not entitled to preliminary injunctive relief with respect to them.
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The State of Florida enacted S.B. 7072—in the words of the Act’s sponsor, as quoted in Governor DeSantis’s signing statement—to combat the “biased silencing” of “our freedom of speech as conservatives ... by the ‘big tech’ oligarchs in Silicon Valley.” News Release: Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech (May 24, 2021).1 The bill, the Governor explained, was passed to take “action to ensure that ‘We the People’—real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites” and to check the “Big Tech censors” that “discriminate in favor of the dominant Silicon Valley ideology.” Id. By signing the bill, the Governor sought to “fight[ ] against [the] big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.” Id.
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See https://www.flgov.com/2021/05/24/governor-ron-desantis-signs-bill-to-stop-the-censorship-of-floridians-by-big-tech. |
S.B. 7072’s enacted findings are more measured. They assert that private social-media platforms are important “in preserving first amendment protections for all Floridians” and, comparing platforms to “public utilities,” argue that they should be “treated similarly to common carriers.” S.B. 7072 § 1(5), (6). That, the Act says, is because social-media platforms “have unfairly censored, shadow banned, deplatformed, and applied post-prioritization algorithms to Floridians” and because “[t]he state has a substantial interest in protecting its residents from inconsistent and unfair actions” by the platforms. Id. § 1(9), (10).
To these ends, S.B. 7072 contains several new statutory provisions that apply to “social media platforms.” The term “social media platform” is defined using size and revenue thresholds that appear to target the “big tech oligarchs” about whose “narrative” and “ideology” the bill’s sponsor and Governor DeSantis had complained. Even so, the definition’s broad conception of what a “social media platform” does may well sweep in other popular websites, like the crowdsourced reference tool Wikipedia and virtual handmade craft-market Etsy:
[A]ny information service, system, Internet search engine, or access software provider that:
1. Provides or enables computer access by multiple users to a computer server, including an Internet platform or a social media site;
2. Operates as a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity;
3. Does business in the state; and
4. Satisfies at least one of the following thresholds:
a. Has annual gross revenues in excess of $100 million ...
b. Has at least 100 million monthly individual platform participants globally.
Fla. Stat. § 501.2041(1)(g). As originally enacted, the law’s definition of “social media platform” expressly excluded any platform “operated by a company that owns and operates a theme park or entertainment complex.” Id. But after the onset of *1206 this litigation—and after Disney executives made public comments critical of another recently enacted Florida law—the State repealed S.B. 7072’s theme-park-company exemption. See S.B. 6-C (2022).
The relevant provisions of S.B. 7072—which are codified at Fla. Stat. §§ 106.072 and 501.20412—can be divided into three categories: (1) content-moderation restrictions; (2) disclosure obligations; and (3) a user-data requirement.
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While S.B. 7072 also enacted antitrust-related provisions, only §§ 106.072 and 501.2041 are at issue in this appeal.
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Content-Moderation Restrictions
• Candidate deplatforming: A social-media platform “may not willfully deplatform a candidate for office.” Fla. Stat. § 106.072(2). The term “deplatform” is defined to mean “the action or practice by a social media platform to permanently delete or ban a user or to temporarily delete or ban a user from the social media platform for more than 14 days.” Id. § 501.2041(1)(c).
• Posts by or about candidates: “A social media platform may not apply or use post-prioritization or shadow banning algorithms for content and material posted by or about ... a candidate.” Id. § 501.2041(2)(h). “Post prioritization” refers to the practice of arranging certain content in a more or less prominent position in a user’s feed or search results. Id. § 501.2041(1)(e).3 “Shadow banning” refers to any action to “limit or eliminate the exposure of a user or content or material posted by a user to other users of [a] ... platform.” Id. § 501.2041(1)(f).
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For purposes of this appeal, the State does not defend the Act’s post-prioritization provisions. |
• “Journalistic enterprises”: A social-media platform may not “censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast.” Id. § 501.2041(2)(j). The term “journalistic enterprise” is defined broadly to include any entity doing business in Florida that either (1) publishes in excess of 100,000 words online and has at least 50,000 paid subscribers or 100,000 monthly users, (2) publishes 100 hours of audio or video online and has at least 100 million annual viewers, (3) operates a cable channel that provides more than 40 hours of content per week to more than 100,000 cable subscribers, or (4) operates under an FCC broadcast license. Id. § 501.2041(1)(d). The term “censor” is also defined broadly to include not only actions taken to “delete,” “edit,” or “inhibit the publication of” content, but also any effort to “post an addendum to any content or material.” Id. § 501.2041(1)(b). The only exception to this provision’s prohibition is for “obscene” content. Id. § 501.2041(2)(j).
• Consistency: A social-media platform must “apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform.” Id. § 501.2041(2)(b). The Act does not define the term “consistent.”
• 30-day restriction: A platform may not make changes to its “user rules, terms, and agreements ... more than once every 30 days.” Id. § 501.2041(2)(c).
• User opt-out: A platform must “categorize” its post-prioritization and shadow-banning algorithms and allow users to opt out of them; for users who opt out, the platform must display material in “sequential or chronological” order. Id. § 501.2041(2)(f). The platform must offer users the opportunity to opt out annually. Id. § 501.2041(2)(g).
Disclosure Obligations
• Standards: A social-media platform must “publish the standards, including detailed *1207 definitions, it uses or has used for determining how to censor, deplatform, and shadow ban.” Id. § 501.2041(2)(a).
• Rule changes: A platform must inform its users “about any changes to” its “rules, terms, and agreements before implementing the changes.” Id. § 501.2041(2)(c).
• View counts: Upon request, a platform must provide a user with the number of others who viewed that user’s content or posts. Id. § 501.2041(2)(e).
• Candidate free advertising: Platforms that “willfully provide[ ] free advertising for a candidate must inform the candidate of such in-kind contribution.” Id. § 106.072(4).
• Explanations: Before a social-media platform deplatforms, censors, or shadow-bans any user, it must provide the user with a detailed notice. Id. § 501.2041(2)(d). In particular, the notice must be in writing and be delivered within 7 days, and must include both a “thorough rationale explaining the reason” for the “censor[ship]” and a “precise and thorough explanation of how the social media platform became aware” of the content that triggered its decision. Id. § 501.2041(3). (The notice requirement doesn’t apply “if the censored content or material is obscene.” Id. § 501.2041(4).)
User-Data Requirement
• Data access: A social-media platform must allow a deplatformed user to “access or retrieve all of the user’s information, content, material, and data for at least 60 days” after the user receives notice of deplatforming. Id. § 501.2041(2)(i).
Enforcement of § 106.072—which contains the candidate-deplatforming provision—falls to the Florida Elections Commission, which is empowered to impose fines of up to $250,000 per day for violations involving candidates for statewide office and $25,000 per day for those involving candidates for other offices. Id. § 106.072(3). Section 501.2041—which contains S.B. 7072’s remaining provisions—may be enforced either by state governmental actors or through civil suits filed by private parties. Id. § 501.2041(5), (6). Private actions under this section can yield up to $100,000 in statutory damages per claim, actual damages, punitive damages, equitable relief, and, in some instances, attorneys’ fees. Id. § 501.2041(6).
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We will train our attention on the question whether NetChoice has shown a substantial likelihood of success on the merits of its First Amendment challenge to Fla. Stat. §§ 106.072 and 501.2041. Because we conclude that the Act’s content-moderation restrictions are substantially likely to violate the First Amendment, and because that conclusion fully disposes of the appeal, we needn’t reach the merits of the plaintiffs’ preemption challenge.4
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The only provisions that NetChoice challenges as preempted are, for reasons we’ll explain, also substantially likely to violate the First Amendment. Of course, federal courts should generally “avoid reaching constitutional questions if there are other grounds upon which a case can be decided,” but that rule applies only when “a dispositive nonconstitutional ground is available.” Otto v. City of Boca Raton, 981 F.3d 854, 871 (11th Cir. 2020) (quotation marks and emphasis omitted). Here, whether or not the preemption ground is “dispositive,” but cf. id., it isn’t “nonconstitutional” because federal preemption is rooted in the Supremacy Clause of Article VI, see La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986).
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In assessing whether the Act likely violates the First Amendment, we must initially consider whether it triggers First Amendment scrutiny in the first place—i.e., whether it regulates “speech” within the meaning of the Amendment at all. See Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6 F.4th 1247, 1254 (11th Cir. 2021). In other words, we must determine whether social-media platforms engage in First-Amendment-protected activity. If they do, we must then proceed to determine what level of scrutiny applies and whether the Act’s provisions survive that scrutiny. See Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11 F.4th 1266, 1291 (11th Cir. 2021) (“FLFNB II”).
For reasons we will explain in the balance of the opinion, we hold as follows: (1) S.B. 7072 triggers First Amendment scrutiny because it restricts social-media platforms’ exercise of editorial judgment and requires them to make certain disclosures; (2) strict scrutiny applies to some of the Act’s content-moderation restrictions while intermediate scrutiny applies to others; (3) the Act’s disclosure provisions should be assessed under the standard articulated in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985); (4) it is substantially likely that the Act’s content-moderation restrictions will not survive even intermediate scrutiny; (5) it is also substantially likely that the requirement that platforms *1210 provide a “thorough rationale” for each content-moderation decision will not survive under Zauderer; (6) it is not substantially likely that the Act’s remaining disclosure provisions are unconstitutional; and (7) the preliminary-injunction factors favor enjoining the provisions of the Act that are substantially likely to be unconstitutional.
Social-media platforms like Facebook, Twitter, YouTube, and TikTok are private companies with First Amendment rights, see First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 781–84, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), and when they (like other entities) “disclos[e],” “publish[ ],” or “disseminat[e]” information, they engage in “speech within the meaning of the First Amendment,” Sorrell v. IMS Health Inc., 564 U.S. 552, 570, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011) (quotation marks omitted). More particularly, when a platform removes or deprioritizes a user or post, it makes a judgment about whether and to what extent it will publish information to its users—a judgment rooted in the platform’s own views about the sorts of content and viewpoints that are valuable and appropriate for dissemination on its site. As the officials who sponsored and signed S.B. 7072 recognized when alleging that “Big Tech” companies harbor a “leftist” bias against “conservative” perspectives, the companies that operate social-media platforms express themselves (for better or worse) through their content-moderation decisions. When a platform selectively removes what it perceives to be incendiary political rhetoric, pornographic content, or public-health misinformation, it conveys a message and thereby engages in “speech” within the meaning of the First Amendment.
Laws that restrict platforms’ ability to speak through content moderation therefore trigger First Amendment scrutiny. Two lines of precedent independently confirm this commonsense conclusion: first, and most obviously, decisions protecting exercises of “editorial judgment”; and second, and separately, those protecting inherently expressive conduct.
We’ll begin with the editorial-judgment cases. The Supreme Court has repeatedly held that a private entity’s choices about whether, to what extent, and in what manner it will disseminate speech—even speech created by others—constitute “editorial judgments” protected by the First Amendment.
Miami Herald Publishing Co. v. Tornillo is the pathmarking case. There, the Court held that a newspaper’s decisions about what content to publish and its “treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment” that the First Amendment was designed to safeguard. 418 U.S. at 258, 94 S.Ct. 2831. Florida had passed a statute requiring any paper that ran a piece critical of a political candidate to give the candidate equal space in its pages to reply. Id. at 243, 94 S.Ct. 2831. Despite the contentions (1) that economic conditions had created “vast accumulations of unreviewable power in the modern media empires” and (2) that those conditions had resulted in “bias and manipulative reportage” and massive barriers to entry, the Court concluded that the state’s attempt to compel the paper’s editors to “publish that which reason tells them should not be published is unconstitutional.” Id. at 250–51, 256, 94 S.Ct. 2831 (quotation marks omitted). Florida’s “intrusion into the function of editors,” the Court held, was barred by the *1211 First Amendment. Id. at 258, 94 S.Ct. 2831.
The Court subsequently extended Miami Herald’s protection of editorial judgment beyond newspapers. In Pacific Gas & Electric Co. v. Public Utilities Commission of California, the Court invalidated a state agency’s order that would have required a utility company to include in its billing envelopes the speech of a third party with which the company disagreed. 475 U.S. at 4, 20, 106 S.Ct. 903 (plurality op.). A plurality of the Court reasoned that the concerns underlying Miami Herald applied to a utility company in the same way that they did to the institutional press. Id. at 11–12, 106 S.Ct. 903. The challenged order required the company “to use its property as a vehicle for spreading a message with which it disagree[d]” and therefore was subject to (and failed) strict First Amendment scrutiny. Id. at 17–21, 106 S.Ct. 903.
So too, in Turner Broadcasting Systems, Inc. v. FCC, the Court held that cable operators—companies that own cable lines and choose which stations to offer their customers—“engage in and transmit speech.” 512 U.S. at 636, 114 S.Ct. 2445. “[B]y exercising editorial discretion over which stations or programs to include in [their] repertoire,” the Court said, they “seek to communicate messages on a wide variety of topics and in a wide variety of formats.” Id. (quotation marks omitted); see also Ark. Educ. TV Comm’n v. Forbes, 523 U.S. 666, 674, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (“Although programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts.”). Because cable operators’ decisions about which channels to transmit were protected speech, the challenged regulation requiring operators to carry broadcast-TV channels triggered First Amendment scrutiny. 512 U.S. at 637, 114 S.Ct. 2445.5
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In Turner, the Court applied intermediate scrutiny because the law was content-neutral. See 512 U.S. at 662, 114 S.Ct. 2445. The point for present purposes is that the Court held that the must-carry provision triggered First Amendment scrutiny. |
Most recently, the Court applied the editorial-judgment principle to a parade organizer in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, explaining that parades (like newspapers and cable-TV packages) constitute protected expression. 515 U.S. at 568, 115 S.Ct. 2338. The Supreme Judicial Court of Massachusetts had attempted to apply the state’s public-accommodations law to require the organizers of a privately run parade to allow a gay-pride group to march. Id. at 564, 115 S.Ct. 2338. Citing Miami Herald, and using words equally applicable here, the Court observed that “the presentation of an edited compilation of speech generated by other persons ... fall[s] squarely within the core of First Amendment security” and that the “selection of contingents to make a parade is entitled to similar protection.” Id. at 570, 115 S.Ct. 2338. The Court concluded that it didn’t matter that the state was attempting to apply a public-accommodations statute because “once the expressive character of both the parade and the marching [gay-rights] contingent [was] understood, it bec[ame] apparent that the state courts’ application of the statute had the effect of declaring the [parade] sponsors’ speech itself to be the public accommodation,” which “violates the fundamental rule of ... the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573, 115 S.Ct. 2338. Nor did it matter, the Court explained, that the parade didn’t produce a “particularized message”: The parade organizer’s *1212 decision to “exclude a message it did not like from the communication it chose to make” was “enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another”—a choice “not to propound a particular point of view” that is “presumed to lie beyond the government’s power to control.” Id. at 574–75, 115 S.Ct. 2338.
Together, Miami Herald, Pacific Gas, and particularly Turner and Hurley establish that a private entity’s decisions about whether, to what extent, and in what manner to disseminate third-party-created content to the public are editorial judgments protected by the First Amendment. For reasons we will explain, social-media platforms’ content-moderation decisions constitute the same sort of editorial judgments and thus trigger First Amendment scrutiny.
Separately, we might also assess social-media platforms’ content-moderation practices against our general standard for what constitutes inherently expressive conduct protected by the First Amendment.
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Whether we assess social-media platforms’ content-moderation activities against the Miami Herald line of cases or against our own decisions explaining what constitutes expressive conduct, the result is the same: Social-media platforms exercise editorial judgment that is inherently expressive. When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity.
Social-media platforms’ content-moderation decisions are, we think, closely analogous to the editorial judgments that the Supreme Court recognized in Miami Herald, Pacific Gas, Turner, and Hurley. Like parade organizers and cable operators, social-media companies are in the business of delivering curated compilations of speech created, in the first instance, by others. Just as the parade organizer exercises editorial judgment when it refuses to include in its lineup groups with whose messages it disagrees, and just as a cable operator might refuse to carry a channel that produces content it prefers not to disseminate, social-media platforms regularly make choices “not to propound a particular point of view.” Hurley, 515 U.S. at 575, 115 S.Ct. 2338. Platforms employ editorial judgment to convey some messages but not others and thereby cultivate different types of communities that appeal to different groups. A few examples:
· YouTube seeks to create a “welcoming community for viewers” and, to that end, prohibits a wide range of content, including spam, pornography, terrorist incitement, election and public-health misinformation, and hate speech.
· Facebook engages in content moderation to foster “authenticity,” “safety,” “privacy,” and “dignity,” and accordingly, removes or adds warnings to a wide range of content—for example, posts that include what it considers to be hate speech, fraud or deception, nudity or sexual activity, and public-health misinformation.
· Twitter aims “to ensure all people can participate in the public conversation freely and safely” by removing content, among other categories, that it views as embodying hate, glorifying violence, promoting suicide, or containing election misinformation.
· Roblox, a gaming social network primarily for children, prohibits “[s]ingling out a user or group for ridicule or abuse,” any sort of sexual content, depictions of and support for war or violence, and any discussion of political parties or candidates.
· Vegan Forum allows non-vegans but “will not tolerate members who promote contrary agendas.”
*1214 And to be clear, some platforms exercise editorial judgment to promote explicitly political agendas. On the right, ProAmericaOnly promises “No Censorship | No Shadow Bans | No BS | NO LIBERALS.”11 And on the left, The Democratic Hub says that its “online community is for liberals, progressives, moderates, independent[s] and anyone who has a favorable opinion of Democrats and/or liberal political views or is critical of Republican ideology.”12
All such decisions about what speech to permit, disseminate, prohibit, and deprioritize—decisions based on platforms’ own particular values and views—fit comfortably within the Supreme Court’s editorial-judgment precedents.
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In an effort to rebut this point, the State responds that because the vast majority of content that makes it onto social-media platforms is never reviewed—let alone removed or deprioritized—platforms aren’t engaged in conduct of sufficiently expressive quality to merit First Amendment protection. See Reply Br. of Appellant at 16. With respect, the State’s argument misses the point. The “conduct” that the challenged provisions regulate—what this entire appeal is about—is the platforms’ “censorship” of users’ posts—i.e., the posts that platforms do review and remove or deprioritize.13 The question, then, is whether that conduct is expressive. For reasons we’ve explained, we think it unquestionably is.14
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The fact that some social-media platforms choose to allow most content doesn’t undermine their claim to First Amendment protection. See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 429 (D.C. Cir. 2017) (Kavanaugh, J., dissental) (explaining that the fact that platforms “have not been aggressively exercising their editorial discretion does not mean that they have no right to exercise their editorial discretion”). |
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Texas and several other states as amici insist that social-media platforms’ “censorship, deplatforming, and shadow banning” activities aren’t inherently expressive conduct for First Amendment purposes because the platforms don’t “inten[d] to convey a particularized message.” States’ Amicus Br. at 6–7 (quoting FLFNB I, 901 F.3d at 1240). They note that the platforms’ most prominent CEOs have denied accusations that their content rules are based on ideology or political perspective. But while an “intent to convey a particularized message” was once necessary to qualify as expressive conduct, FLFNB I explained that “[s]ince then ... the [Supreme] Court has clarified that a ‘narrow, succinctly articulable message is not a condition of constitutional protection’ because ‘if confined to expressions conveying a “particularized message” [the First Amendment] would never reach the unquestionably shielded painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.’ ” FLFNB I, 901 F.3d at 1240 (last alteration in original) (quoting Hurley, 515 U.S. at 569, 115 S.Ct. 2338)). Instead, as explained in text, we require only that a “reasonable person would interpret [the conduct] as some sort of message.” Id. (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004)). To the extent that the states argue that social-media platforms lack the requisite “intent” to convey a message, we find it implausible that platforms would engage in the laborious process of defining detailed community standards, identifying offending content, and removing or deprioritizing that content if they didn’t intend to convey “some sort of message.” Unsurprisingly, the record in this case confirms platforms’ intent to communicate messages through their content-moderation decisions—including that certain material is harmful or unwelcome on their sites. See, e.g., Doc. 25-1 at 2 (declaration of YouTube executive explaining that its approach to content moderation “is to remove content that violates [its] policies (developed with outside experts to prevent real-world harms), reduce the spread of harmful misinformation ... and raise authoritative and trusted content”); Facebook Community Standards, supra (noting that Facebook moderates content “in service of” its “values” of “authenticity,” “safety,” “privacy,” and “dignity”).
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In the face of the editorial-judgment and expressive-conduct cases, the State insists that S.B. 7072 doesn’t even implicate, let alone violate, the First Amendment. The State’s first line of argument relies on two cases—PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), and Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (“FAIR”)—in which the Supreme Court upheld government regulations that effectively compelled private actors to “host” others’ speech. The State’s second argument seeks to evade—or at least minimize—First Amendment scrutiny by labeling social-media platforms “common carriers.” We find neither argument convincing.
We begin with the “hosting” cases. The first decision to which the State points, PruneYard, is readily distinguishable. There, the Supreme Court affirmed a state court’s decision requiring a privately owned shopping mall to allow members of the public to circulate petitions on its property. 447 U.S. at 76–77, 88, 100 S.Ct. 2035. In that case, though, the only First Amendment interest that the mall owner asserted was the right “not to be forced by the State to use [its] property as a forum for the speech of others.” Id. at 85, 100 S.Ct. 2035. The Supreme Court’s subsequent decisions in Pacific Gas and Hurley distinguished and cabined PruneYard. The Pacific Gas plurality explained that “[n]otably absent from PruneYard was any concern that access to this area might affect the shopping center owner’s exercise of his own right to speak: the owner did not even allege that he objected to the content of the pamphlets.” 475 U.S. at 12, 106 S.Ct. 903 (plurality op.); see also id. at 24, 106 S.Ct. 903 (Marshall, J., concurring in the judgment) (“While the shopping center owner in PruneYard wished to be free of unwanted expression, he nowhere alleged that his own expression was hindered in the slightest.”); Hurley, 515 U.S. at 580, 115 S.Ct. 2338 (noting that the “principle of speaker’s autonomy was simply not threatened in” PruneYard). Because NetChoice asserts that S.B. 7072 interferes with the platforms’ own speech rights by forcing them to carry messages that contradict their community standards and terms of service, PruneYard is inapposite.
FAIR may be a bit closer, but it, too, is distinguishable. In that case, the Supreme Court upheld a federal statute—the Solomon Amendment—that required law *1216 schools, as a condition to receiving federal funding, to allow military recruiters the same access to campuses and students as any other employer. 547 U.S. at 56, 126 S.Ct. 1297. The schools, which had restricted recruiters’ access because they opposed the military’s “Don’t Ask, Don’t Tell” policy regarding gay servicemembers, protested that requiring them to host recruiters and post notices on their behalf violated the First Amendment. Id. at 51, 126 S.Ct. 1297. But the Court held that the law didn’t implicate the First Amendment because it “neither limit[ed] what law schools may say nor require[d] them to say anything.” Id. at 60, 126 S.Ct. 1297. In so holding, the Court rejected two arguments for why the First Amendment should apply—(1) that the Solomon Amendment unconstitutionally required law schools to host the military’s speech, and (2) that it restricted the law schools’ expressive conduct. Id. at 60–61, 126 S.Ct. 1297.
With respect to the first argument, the Court distinguished Miami Herald, Pacific Gas, and Hurley on the ground that, in those cases, “the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Id. at 63, 126 S.Ct. 1297. The Solomon Amendment’s requirement that schools host military recruiters did “not affect the law schools’ speech,” the Court said, “because the schools [were] not speaking when they host[ed] interviews and recruiting receptions”: Recruiting activities, the Court reasoned, simply aren’t “inherently expressive”—they’re not speech—in the way that editorial pages, newsletters, and parades are. Id. at 64, 126 S.Ct. 1297. Therefore, the Court concluded, “accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.” Id. Nor did the Solomon Amendment’s requirement that schools send notices on behalf of military recruiters unconstitutionally compel speech, the Court held, as it was merely incidental to the law’s regulation of conduct. Id. at 62, 126 S.Ct. 1297.
The FAIR Court also rejected the law schools’ second argument—namely, that the Solomon Amendment restricted their inherently expressive conduct. The schools’ refusal to allow military recruiters on campus was expressive, the Court emphasized, “only because [they] accompanied their conduct with speech explaining it.” Id. at 66, 126 S.Ct. 1297. In the normal course, the Court said, an observer “who s[aw] military recruiters interviewing away from the law school [would have] no way of knowing” whether the school was expressing a message or, instead, the school’s rooms just happened to be full or the recruiters just preferred to interview elsewhere. Id. Because “explanatory speech” was necessary to understand the message conveyed by the law schools’ conduct, the Court concluded, that conduct wasn’t “inherently expressive.” Id.
FAIR isn’t controlling here because social-media platforms warrant First Amendment protection on both of the grounds that the Court held that law-school recruiting services didn’t.
First, S.B. 7072 interferes with social-media platforms’ own “speech” within the meaning of the First Amendment. Social-media platforms, unlike law-school recruiting services, are in the business of disseminating curated collections of speech. A social-media platform that “exercises editorial discretion in the selection and presentation of” the content that it disseminates to its users “engages in speech activity.” Ark. Educ. TV Comm’n, 523 U.S. at 674, 118 S.Ct. 1633; see Sorrell, 564 U.S. at 570, 131 S.Ct. 2653 (explaining that the “dissemination of information” is “speech within the meaning of the First *1217 Amendment”); Bartnicki v. Vopper, 532 U.S. 514, 527, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (“If the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category.” (cleaned up)). Just as the must-carry provisions in Turner “reduce[d] the number of channels over which cable operators exercise[d] unfettered control” and therefore triggered First Amendment scrutiny, 512 U.S. at 637, 114 S.Ct. 2445, S.B. 7072’s content-moderation restrictions reduce the number of posts over which platforms can exercise their editorial judgment. Because a social-media platform itself “spe[aks]” by curating and delivering compilations of others’ speech—speech that may include messages ranging from Facebook’s promotion of authenticity, safety, privacy, and dignity to ProAmericaOnly’s “No BS | No LIBERALS”—a law that requires the platform to disseminate speech with which it disagrees interferes with its own message and thereby implicates its First Amendment rights.
Second, social-media platforms are engaged in inherently expressive conduct of the sort that the Court found lacking in FAIR. As we were careful to explain in FLFNB I, FAIR “does not mean that conduct loses its expressive nature just because it is also accompanied by other speech.” 901 F.3d at 1243–44. Rather, “[t]he critical question is whether the explanatory speech is necessary for the reasonable observer to perceive a message from the conduct.” Id. at 1244. And we held that an advocacy organization’s food-sharing events constituted expressive conduct from which, “due to the context surrounding them, the reasonable observer would infer some sort of message”—even without reference to the words “Food Not Bombs” on the organization’s banners. Id. at 1245. Context, we held, is what differentiates “activity that is sufficiently expressive [from] similar activity that is not”—e.g., “the act of sitting down” from “the sit-in by African Americans at a Louisiana library” protesting segregation. Id. at 1241 (citing Brown v. Louisiana, 383 U.S. 131, 141–42, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966)).
Unlike the law schools in FAIR, social-media platforms’ content-moderation decisions communicate messages when they remove or “shadow-ban” users or content. Explanatory speech isn’t “necessary for the reasonable observer to perceive a message from,” for instance, a platform’s decision to ban a politician or remove what it perceives to be misinformation. Id. at 1244. Such conduct—the targeted removal of users’ speech from websites whose primary function is to serve as speech platforms—conveys a message to the reasonable observer “due to the context surrounding” it. Id. at 1245; see also Coral Ridge, 6 F.4th at 1254. Given the context, a reasonable observer witnessing a platform remove a user or item of content would infer, at a minimum, a message of disapproval.15 *1218 Thus, social-media platforms engage in content moderation that is inherently expressive notwithstanding FAIR.
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One might object that users know that social-media platforms remove content, deplatform users, or deprioritize posts only because of the platforms’ speech explaining those decisions—so the conduct itself isn’t inherently expressive. See FAIR, 547 U.S. at 66, 126 S.Ct. 1297. But unlike the person who observes military recruiters interviewing away from a law school and has no idea whether the school is thereby expressing a message, see id., we find it unlikely that a reasonable observer would think, for instance, that the reason he rarely or never sees pornography on Facebook is that none of Facebook’s billions of users ever posts any. The more reasonable inference to be drawn from the fact that certain types of content rarely or never appear when a user browses a social-media site—or why certain posts disappear or prolific Twitter users vanish from the platform after making controversial statements—is that the platform disapproves. It might be, we suppose, that some content-moderation decisions—for instance, to prioritize or deprioritize individual posts—are so subtle that users wouldn’t notice them but for the platforms’ speech explaining their actions. But even if some subset of content-moderation activities wouldn’t count as inherently expressive conduct under FAIR and FLFNB I, many are sufficiently transparent that users would likely notice them and, in context, infer from them “some sort of message”—even in the absence of explanatory speech. Specifically, it’s likely clear to viewers that platforms take down individual posts, remove entire categories of content, and deplatform other users—and that such actions express messages. “Shadow-banning” would also likely be apparent and communicate a message to a reasonable user who knows that she follows a particular poster but doesn’t see that poster’s content, for instance, in her feed or search results. Thus, even if some content moderation isn’t inherently expressive, much of it is. See United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (noting that a statute facially violates the First Amendment if “a substantial number of its applications are unconstitutional, judged in relation to its plainly legitimate sweep” (quotation marks omitted)). As explained in text, S.B. 7072’s content-moderation restrictions all regulate platforms’ inherently expressive conduct and trigger heightened scrutiny. See infra Part II.C.
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The State asserts that PruneYard and FAIR—and, for that matter, the Supreme Court’s editorial-judgment decisions—establish three “guiding principles” that should lead us to conclude that S.B. 7072 doesn’t implicate the First Amendment. We disagree.
The first principle—that a regulation must interfere with the host’s ability to speak in order to implicate the First Amendment—does find support in FAIR. See 547 U.S. at 64, 126 S.Ct. 1297. Even so, the State’s argument—that S.B. 7072 doesn’t interfere with platforms’ ability to speak because they can still affirmatively dissociate themselves from the content that they disseminate—encounters two difficulties. As an initial matter, in at least one key provision, the Act defines the term “censor” to include “posting an addendum,” i.e., a disclaimer—and thereby explicitly prohibits the very speech by which a platform might dissociate itself from users’ messages. Fla. Stat. § 501.2041(1)(b). Moreover, and more fundamentally, if the exercise of editorial judgment—the decision about whether, to what extent, and in what manner to disseminate third-party content—is itself speech or inherently expressive conduct, which we have said it is, then the Act does interfere with platforms’ ability to speak. See Pacific Gas, 475 U.S. at 10–12, 16, 106 S.Ct. 903 (plurality op.) (noting that if the government could compel speakers to “propound ... messages with which they disagree,” the First Amendment’s protection “would be empty, for the government could require speakers to affirm in one breath that which they deny in the next”).
The State’s second principle—that in order to trigger First Amendment scrutiny a regulation must create a risk that viewers or listeners might confuse a user’s and the platform’s speech—finds little support in our precedent. Consumer confusion simply isn’t a prerequisite to First Amendment protection. In Miami Herald, for instance, even though no reasonable observer would have mistaken a political candidate’s statutorily mandated right-to-reply column for the newspaper reversing its earlier criticism, the Supreme Court deemed the paper’s editorial judgment to be protected. See 418 U.S. at 244, 258, 94 S.Ct. 2831. Nor was there a risk of consumer confusion in Turner: No reasonable person would have thought that the cable operator there endorsed every message *1219 conveyed by every speaker on every one of the channels it carried, and yet the Court stated categorically that the operator’s editorial discretion was protected. See 512 U.S. at 636–37, 114 S.Ct. 2445. Moreover, it seems to us that the State’s confusion argument boomerangs back around on itself: If a platform announces a community standard prohibiting, say, hate speech, but is then barred from removing or even disclaiming posts containing what it perceives to be hate speech, there’s a real risk that a viewer might erroneously conclude that the platform doesn’t consider those posts to constitute hate speech.
The State’s final principle—that in order to receive First Amendment protection a platform must curate and present speech in such a way that a “common theme” emerges—is similarly flawed. Hurley held that “a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech.” 515 U.S. at 569–70, 115 S.Ct. 2338; see FLFNB I, 901 F.3d at 1240 (citing Hurley for the proposition that a “particularized message” isn’t required for conduct to qualify for First Amendment protection). Moreover, even if one could theoretically attribute a common theme to a parade, Turner makes clear that no such theme is required: It seems to us inconceivable that one could ascribe a common theme to the cable operator’s choice there to carry hundreds of disparate channels, and yet the Court held that the First Amendment protected the operator’s editorial discretion. 512 U.S. at 636, 114 S.Ct. 2445.16
In short, the State’s reliance on PruneYard and FAIR and its attempts to distinguish the editorial-judgment line of cases are unavailing.
The State separately seeks to evade (or at least minimize) First Amendment scrutiny by labeling social-media platforms “common carriers.”17 The crux of the State’s position, as expressed at oral argument, is that “[t]here are certain services that society determines people shouldn’t *1220 be required to do without,” and that this is “true of social media in the 21st century.” Oral Arg. at 18:37 et seq. For reasons we explain, we disagree.
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We say “or at least minimize” because it’s not entirely clear what work a common-carrier designation would perform in a First Amendment analysis. While the Supreme Court has suggested that common carriers “receive a lower level of First Amendment protection than other forms of communication,” it has never explained the precise level of protection that they do receive. Christopher S. Yoo, The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy, 1 J. Free Speech L. 463, 480–82 (2021); see also FCC v. League of Women Voters of Cal., 468 U.S. 364, 378, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) (noting only that “[u]nlike common carriers, broadcasters are entitled under the First Amendment to exercise the widest journalistic freedom consistent with their public duties” (cleaned up)). Moreover, at common law, even traditional common carriers like innkeepers were allowed to exclude drunks, criminals, diseased persons, and others who were “obnoxious to [ ] others,” and telegraph companies weren’t required to accept “obscene, blasphemous, profane or indecent messages.” See TechFreedom Amicus Br. at 29 (quoting 1 Bruce Wyman, The Special Law Governing Public Service Corporations, and All Others Engaged in Public Employment §§ 632–33 (1911)). Because S.B. 7072 prevents platforms from removing content regardless of its impact on others, it appears to extend beyond the historical obligations of common carriers. |
At the outset, we confess some uncertainty whether the State means to argue (a) that platforms are already common carriers, and so possess no (or only minimal) First Amendment rights, or (b) that the State can, by dint of ordinary legislation, make them common carriers, thereby abrogating any First Amendment rights that they currently possess. Whatever the State’s position, we are unpersuaded.
The first version of the argument fails because, in point of fact, social-media platforms are not—in the nature of things, so to speak—common carriers. That is so for at least three reasons.
First, social-media platforms have never acted like common carriers. “[I]n the communications context,” common carriers are entities that “make a public offering to provide communications facilities whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing”—they don’t “make individualized decisions, in particular cases, whether and on what terms to deal.” FCC v. Midwest Video Corp., 440 U.S. 689, 701, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979) (cleaned up). While it’s true that social-media platforms generally hold themselves open to all members of the public, they require users, as preconditions of access, to accept their terms of service and abide by their community standards. In other words, Facebook is open to every individual if, but only if, she agrees not to transmit content that violates the company’s rules. Social-media users, accordingly, are not freely able to transmit messages “of their own design and choosing” because platforms make—and have always made—“individualized” content- and viewpoint-based decisions about whether to publish particular messages or users.
Second, Supreme Court precedent strongly suggests that internet companies like social-media platforms aren’t common carriers. While the Court has applied less stringent First Amendment scrutiny to television and radio broadcasters, the Turner Court cabined that approach to “broadcast” media because of its “unique physical limitations”—chiefly, the scarcity of broadcast frequencies. 512 U.S. at 637–39, 114 S.Ct. 2445. Instead of “comparing cable operators to electricity providers, trucking companies, and railroads—all entities subject to traditional economic regulation”—the Turner Court “analogized the cable operators [in that case] to the publishers, pamphleteers, and bookstore owners traditionally protected by the First Amendment.” U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 428 (D.C. Cir. 2017) (Kavanaugh, J., dissental); see Turner, 512 U.S. at 639, 114 S.Ct. 2445. And indeed, the Court explicitly distinguished online from broadcast media in Reno v. American Civil Liberties Union, emphasizing that the “vast democratic forums of the Internet” have never been “subject to the type of government supervision and regulation that has attended the broadcast industry.” 521 U.S. 844, 868–69, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). These precedents demonstrate that social-media platforms should be treated more like cable operators, which retain their First Amendment right to exercise editorial discretion, than traditional common carriers.
Finally, Congress has distinguished internet companies from common carriers. The Telecommunications Act of 1996 explicitly differentiates “interactive computer services”—like social-media platforms—from “common carriers or *1221 telecommunications services.” See, e.g., 47 U.S.C. § 223(e)(6) (“Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers.”). And the Act goes on to provide protections for internet companies that are inconsistent with the traditional common-carrier obligation of indiscriminate service. In particular, it explicitly protects internet companies’ ability to restrict access to a plethora of material that they might consider “objectionable.” Id. § 230(c)(2)(A). Federal law’s recognition and protection of social-media platforms’ ability to discriminate among messages—disseminating some but not others—is strong evidence that they are not common carriers with diminished First Amendment rights.
If social-media platforms are not common carriers either in fact or by law, the State is left to argue that it can force them to become common carriers, abrogating or diminishing the First Amendment rights that they currently possess and exercise. Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier. Quite the contrary, if social-media platforms currently possess the First Amendment right to exercise editorial judgment, as we hold it is substantially likely they do, then any law infringing that right—even one bearing the terminology of “common carri[age]”—should be assessed under the same standards that apply to other laws burdening First-Amendment-protected activity. See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 825, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (Thomas, J., concurring in the judgment in part and dissenting in part) (“Labeling leased access a common carrier scheme has no real First Amendment consequences.”); Cablevision Sys. Corp. v. FCC, 597 F.3d 1306, 1321–22 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (explaining that because video programmers have a constitutional right to exercise editorial discretion, “the Government cannot compel [them] to operate like ‘dumb pipes’ or ‘common carriers’ that exercise no editorial control”); U.S. Telecom Ass’n, 855 F.3d at 434 (Kavanaugh, J., dissental) (“Can the Government really force Facebook and Google ... to operate as common carriers?”).
The State’s best rejoinder is that because large social-media platforms are clothed with a “public trust” and have “substantial market power,” they are (or should be treated like) common carriers. Br. of Appellants at 35–37; see Biden v. Knight First Amend. Inst., ––– U.S. ––––, 141 S. Ct. 1220, 1226, 209 L.Ed.2d 519 (2021) (Thomas, J., concurring). These premises aren’t uncontroversial, but even if they’re true, they wouldn’t change our conclusion. The State doesn’t argue that market power and public importance are alone sufficient reasons to recharacterize a private company as a common carrier; rather, it acknowledges that the “basic characteristic of common carriage is the requirement to hold oneself out to serve the public indiscriminately.” Br. of Appellants at 35 (quoting U.S. Telecom. Ass’n v. FCC, 825 F.3d 674, 740 (D.C. Cir. 2016)); see Knight, 141 S. Ct. at 1223 (Thomas, J., concurring). The problem, as we’ve explained, is that social-media platforms don’t serve the public indiscriminately but, rather, exercise editorial judgment to curate the content that they display and disseminate.
The State seems to argue that even if platforms aren’t currently common carriers, their market power and public *1222 importance might justify their “legislative designation ... as common carriers.” Br. of Appellants at 36; see Knight, 141 S. Ct. at 1223 (Thomas, J., concurring) (noting that the Court has suggested that common-carrier regulations “may be justified, even for industries not historically recognized as common carriers, when a business ... rises from private to be a public concern” (quotation marks omitted)). That might be true for an insurance or telegraph company, whose only concern is whether its “property” becomes “the means of rendering the service which has become of public interest.” Knight, 141 S. Ct. at 1223 (Thomas, J., concurring) (quoting German All. Ins. Co. v. Lewis, 233 U.S. 389, 408, 34 S.Ct. 612, 58 L.Ed. 1011 (1914)). But the Supreme Court has squarely rejected the suggestion that a private company engaging in speech within the meaning of the First Amendment loses its constitutional rights just because it succeeds in the marketplace and hits it big. See Miami Herald, 418 U.S. at 251, 258, 94 S.Ct. 2831.
In short, because social-media platforms exercise—and have historically exercised—inherently expressive editorial judgment, they aren’t common carriers, and a state law can’t force them to act as such unless it survives First Amendment scrutiny.
C
…
Taking stock: We conclude that social-media platforms’ content-moderation activities—permitting, removing, prioritizing, and deprioritizing users and posts—constitute “speech” within the meaning of the First Amendment. All but one of S.B. 7072’s operative provisions implicate platforms’ First Amendment rights and are therefore subject to First Amendment scrutiny.
Having determined that it is substantially likely that S.B. 7072 triggers First Amendment scrutiny, we must now determine the level of scrutiny to apply—and to which provisions.
…
Having determined that we cannot use the Act’s chief proponents’ statements as a basis to invalidate S.B. 7072 “root and branch,” we must proceed on a more nuanced basis to determine what sort of scrutiny each provision—or category of provisions—triggers.
To start, we hold that it is substantially likely that what we have called the Act’s content-moderation restrictions are subject to either strict or intermediate First Amendment scrutiny, depending on whether they are content-based or content-neutral. See FLFNB II, 11 F.4th at 1291–92. Some of these provisions are self-evidently content-based and thus subject to strict scrutiny. The journalistic-enterprises provision, for instance, prohibits a platform from making content-moderation decisions concerning any “journalistic enterprise based on the content of” its posts, Fla. Stat. § 501.2041(2)(j) (emphasis added), and thus applies “because of the ... message” that the platform’s decision expresses, Reed, 576 U.S. at 163, 135 S.Ct. 2218: Removing a journalistic enterprise’s post, for instance, because it is duplicative or too big is permissible, but removing a post to communicate disapproval of its content isn’t. Similarly, the restriction on deprioritizing posts “about ... a candidate,” id. § 501.2041(2)(h), regulates speech based on “the topic discussed,” Reed, 576 U.S. at 163, 135 S.Ct. 2218, and is therefore clearly content-based. At the other end of the spectrum, the candidate-deplatforming (§ 106.072(2)) and user-opt-out (§ 501.2041(2)(f), (g)) provisions are pretty obviously content-neutral. Neither a prohibition on banishing political candidates nor a requirement that platforms allow users to decline content curation depends in any way on the substance of platforms’ content-moderation decisions.
Some of the provisions—for instance, § 501.2041(2)(b)’s requirement that platforms exercise their content-moderation authority “consistently”—may exhibit both content-based and content-neutral characteristics. Ultimately, though, we find that we needn’t precisely categorize each and every one of S.B. 7072’s content-moderation restrictions because it is substantially likely that they are all “regulation[s] of expressive conduct” that, at the very least, *1227 trigger intermediate scrutiny, FLFNB II, 11 F.4th at 1291–92—and, for reasons we’ll explain in the next Part, none survive even that, cf. Sorrell, 564 U.S. at 571, 131 S.Ct. 2653 (noting that because “the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied ... there is no need to determine whether all speech hampered by [the law] is commercial”).
A different standard applies to S.B. 7072’s disclosure provisions—§ 106.072(4) and § 501.2041(2)(a), (c), (e), (4). These are content-neutral regulations requiring social-media platforms to disclose “purely factual and uncontroversial information” about their conduct toward their users and the “terms under which [their] services will be available,” which are assessed under the standard announced in Zauderer. 471 U.S. at 651, 105 S.Ct. 2265. While “restrictions on nonmisleading commercial speech regarding lawful activity must withstand intermediate scrutiny,” when “the challenged provisions impose a disclosure requirement rather than an affirmative limitation on speech ... the less exacting scrutiny described in Zauderer governs our review.” Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 249, 130 S.Ct. 1324, 176 L.Ed.2d 79 (2010). Although this standard is typically applied in the context of advertising and to the government’s interest in preventing consumer deception, we think it is broad enough to cover S.B. 7072’s disclosure requirements—which, as the State contends, provide users with helpful information that prevents them from being misled about platforms’ policies.
At last, it is time to apply the requisite First Amendment scrutiny. We hold that it is substantially likely that none of S.B. 7072’s content-moderation restrictions survive intermediate—let alone strict—scrutiny. We further hold that there is a substantial likelihood that the “thorough explanation” disclosure requirement (§ 501.2041(2)(d)) is unconstitutional. As for the remaining disclosure provisions, we hold that it is not substantially likely that they are unconstitutional.22
…
We hold that the district court did not abuse its discretion when it preliminarily enjoined those provisions of S.B. 7072 that are substantially likely to violate the First Amendment. But the district court did abuse its discretion when it enjoined provisions of S.B. 7072 that aren’t likely unconstitutional. Accordingly, we AFFIRM the preliminary injunction in part, and VACATE and REMAND in part, as follows:
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Provision
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Fla. Stat. §
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Likely Constitutionality
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Disposition
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Candidate deplatforming
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106.072(2)
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Unconstitutional
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Affirm
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Posts by/about candidates
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501.2041(2)(h)
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Unconstitutional
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Affirm
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“Journalistic enterprises”
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501.2041(2)(j)
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Unconstitutional
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Affirm
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Consistency
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501.2041(2)(b)
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Unconstitutional
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Affirm
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30-day restriction
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501.2041(2)(c)
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Unconstitutional
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Affirm
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User opt-out
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501.2041(2)(f),(g)
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Unconstitutional
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Affirm
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Explanations (per decision)
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501.2041(2)(d)
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Unconstitutional
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Affirm
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Standards
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501.2041(2)(a)
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Constitutional
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Vacate
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Rule changes
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501.2041(2)(c)
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Constitutional
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Vacate
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User view counts
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501.2041(2)(e)
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Constitutional
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Vacate
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Candidate “free advertising”
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106.072(4)
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Constitutional
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Vacate
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User-data access
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501.2041(2)(i)
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Constitutional
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Vacate
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