Netchoice, LLC v. Attorney Gen.

34 F.4th 1196

NETCHOICE, LLC, d.b.a. NetChoice, Computer & Communications Industry Association, d.b.a. CCIA, Plaintiffs-Appellees,

v.ATTORNEY GENERAL, State of FLORIDA, in their official capacity, Joni Alexis Poitier, in her official capacity as Commissioner of the Florida Elections Commission, Jason Todd Allen, in his official capacity as Commissioner of the Florida Elections Commission, John Martin Hayes, in his official capacity as Commissioner of the Florida Elections Commission, Kymberlee Curry Smith, in her official capacity as Commissioner of Florida Elections Commission, Deputy Secretary of Business Operations of the Florida Department of Management Services, in their official capacity, Defendants-Appellants.

No. 21-12355

United States Court of Appeals, Eleventh Circuit.

Filed: May 23, 2022

Paul D. Clement, Winn Allen, Kasdin Miller Mitchell, James Xi, Attorney, Kirkland & Ellis, LLP, Washington, DC, Evelyn Blacklock, Kirkland & Ellis, LLP, New York, NY, Ilana Hope Eisenstein, Ben Fabens-Lassen, Jonathan Allen Green, Danielle T. Morrison, DLA Piper LLP (US), Philadelphia, PA, Steffen Nathanael Johnson, Wilson Sonsini Goodrich & Rosati, PC, Washington, DC, Peter Karanjia, DLA Piper LLP (US), Washington, DC, Christopher G. Oprison, DLA Piper, LLP (US), Miami, FL, Joseph Trumon Phillips, DLA Piper LLP (US), Tampa, FL, Lauren Gallo White, Wilson Sonsini Goodrich & Rosati, PC, San Francisco, CA, Brian M. Willen, Wilson Sonsini Goodrich & Rosati, New York, NY, Meng Jia Yang, Wilson Sonsini Goodrich & Rosati, PC, Palo Alto, CA, for Plaintiff - Appellee NetChoice LLC.

Paul D. Clement, Winn Allen, Kasdin Miller Mitchell, James Xi, Attorney, Kirkland & Ellis, LLP, Washington, DC, Evelyn Blacklock, Kirkland & Ellis, LLP, New York, NY, Ilana Hope Eisenstein, Ben Fabens-Lassen, Jonathan Allen Green, Danielle T. Morrison, DLA Piper LLP (US), Philadelphia, PA, Steffen Nathanael Johnson, Wilson Sonsini Goodrich & Rosati, PC, Washington, DC, Peter Karanjia, DLA Piper LLP (US), Washington, DC, Christopher G. Oprison, DLA Piper, LLP (US), Miami, FL, Joseph Trumon Phillips, DLA Piper LLP (US), Tampa, FL, Lauren Gallo White, Wilson Sonsini Goodrich & Rosati, PC, San Francisco, CA, Brian M. Willen, Wilson Sonsini Goodrich & Rosati, New York, NY, Meng Jia Yang, Wilson Sonsini Goodrich & Rosati, PC, Palo Alto, CA, Glenn Thomas Burhans, Jr., Christopher Roy Clark, Stearns Weaver Miller Weissler Alhadeff & Sitterson, PA, Tallahassee, FL, Douglas Lamar Kilby, Ausley & McMullen, PA, Tallahassee, FL, Bridget Kellogg Smitha, Greenberg Traurig, PA, Tallahassee, FL, for Plaintiff - Appellee Computer & Communications Industry Association.

Florida Attorney General Service, Daniel William Bell, Henry Charles Whitaker, Office of the Attorney General, Tallahassee, FL, for Defendant - Appellant Attorney General, State of Florida.

Florida Attorney General Service, Daniel William Bell, Henry Charles Whitaker, Office of the Attorney General, Tallahassee, FL, Evan Matthew Ezray, Attorney General's Office, West Palm Beach, FL, for Defendants - Appellants Joni Alexis Poitier, Jason Todd Allen, John Martin Hayes and Kymberlee Curry Smith.

Charles J. Cooper, Brian W. Barnes, Joseph Masterman, David H. Thompson, John Tienken, Cooper & Kirk, PLLC, Washington, DC, Daniel William Bell, Henry Charles Whitaker, Office of the Attorney General, Tallahassee, FL, Raymond Treadwell, James Uthmeier, Executive Office of the Governor, Tallahassee, FL, for Defendant - Appellant Deputy Secretary of Business Operations of the Florida Department of Management Services.

Endel Kolde, Senior Attorney, Alan Gura, Institute for Free Speech, Washington, DC, for Amicus Curiae Institute for Free Speech.

Jordan E. Pratt, First Liberty Institute, Washington, DC, for Amici Curiae The Babylon Bee, LLC and Not the Bee, LLC.

William Francis Cole, Office of the Attorney General of Texas, Austin, TX, for Amici Curiae State of Texas, State of Alabama, State of Alaska, State of Arizona, State of Arkansas, State of Kentucky, State of Mississippi, State of Missouri, State of Montana and State of South Carolina.

Richard Lawson, Gardner Brewer Hudson, PA, Tampa, FL, Joshua Joseph Campbell, Joshua Joseph Campbell Law Office, Savannah, GA, D. Adam Candeub, Michigan State University, East Lansing, MI, for Amicus Curiae America First Policy Institute.

Corbin Barthold, TechFreedom, Washington, DC, Amicus Curiae TechFreedom.

Marc J. Zwillinger, Jacob A. Sommer, ZwillGen, PLLC, Washington, DC, for Amici Curiae Chamber of Progress, Connected Commerce Council, CTA, Engine Advocacy, Information Technology and Innovation Foundation, LGBT Tech Institute, National Black Justice Coalition, TechNet, Washington Center for Technology Policy Inclusion and Center for Democracy & Technology.

Jacob A. Sommer, ZwillGen, PLLC, Washington, DC, for Amicus Curiae Progressive Policy Institute.

James Burges Lake, Mark R. Caramanica, Thomas & LoCicero, PL, Tampa, FL, for Amicus Curiae Center for Democracy & Technology.

Ilya Shapiro, Cato Institute, Washington, DC, for Amicus Curiae Cato Institute.

Deanna K. Shullman, Shullman Fugate, PLLC, Tampa, FL, for Amici Curiae The Reporters Committee for Freedom of the Press, American Booksellers Association, American Civil Liberties Union, American Civil Liberties Union of Florida, The Authors Guild, Inc., The Media Coalition Foundation, Inc., The Media Law Resource Center and Pen American Center, Inc.

David Greene, Electronic Frontier Foundation, San Francisco, CA, Christopher Benton Hopkins, McDonald Hopkins, LLC, West Palm Beach, FL, for Amicus Curiae Electronic Frontier Foundation.

Christopher Benton Hopkins, McDonald Hopkins, LLC, West Palm Beach, FL, for Amicus Curiae Protect Democracy Project, Inc.

Patrick Carome, Ari Holtzblatt, Wilmer Cutler Pickering Hale & Dorr, LLP, Washington, DC, for Amicus Curiae Internet Association.

Scott B. Wilkens, Knight First Amendment Institute at Columbia University, New York, NY, for Amicus Curiae The Knight First Amendment Institute at Columbia University.

Allonn Emanuel Levy, Hopkins & Carley, San Jose, CA, Robin Gross, Law Office of Robin Gross, San Francisco, CA, for Amicus Curiae IP Justice.

Jackson Roger Sharman, III, Jeff P. Doss, Jonathan R. Little, Lightfoot Franklin & White, LLC, Birmingham, AL, for Amicus Curiae Christopher Cox.

Catherine R. Gellis, Catherine R. Gellis, Esq., Sausalito, CA, for Amicus Curiae Floor64, Inc.

Gautam Hans, Vanderbilt Legal Clinic, Nashville, TN, for Amicus Curiae First Amendment Law Professors.

Before Newsom, Tjoflat, and Ed Carnes, Circuit Judges.

Newsom, Circuit Judge:

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.

I

A

We begin with a primer: This is a case about social-media platforms. (If you're one of the millions of Americans who regularly use social media or can't remember a time before social media existed, feel free to skip ahead.)

At their core, social-media platforms collect speech created by third parties—typically in the form of written text, photos, and videos, which we'll collectively call "posts"—and then make that speech available to others, who might be either individuals who have chosen to "follow" t...