CopyPublished | Court of Appeals for the Eleventh Circuit
...But after the onset of this litigation—
and after Disney executives made public comments critical of an-
other recently enacted Florida law—the State repealed S.B. 7072’s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
501.2041 2—can be divided into three cate-
gories: (1) content-moderation restrictions; (2) disclosure obliga-
tions; and (3) a user-data requirement.
2 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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10 Opinion of the Court 21-12355
Content-Moderation Restrictions
• Candidate deplatforming: A social-media platform “may
not willfully deplatform a candidate for office.” Fla. Stat.
§
106.072(2)....
...hat user’s content
or posts. Id. §
501.2041(2)(e).
• Candidate free advertising: Platforms that “willfully pro-
vide[] free advertising for a candidate must inform the can-
didate 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....
...formed user to “access or retrieve all of the user’s infor-
mation, 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 Commis-
sion, 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)....
...They sued the Florida officials charged with enforcing
S.B. 7072 under 42 U.S.C. § 1983. In particular, they sought to
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14 Opinion of the Court 21-12355
enjoin enforcement of §§
106.072 and
501.2041 on a number of
grounds, including, as relevant here, that the law’s provisions
(1) violate the social-media companies’ right to free speech under
the First Amendment and (2) are preempted by federal law.
The district court granted NetChoice’s motion and prelimi-
narily enjoined enforcement of §§
106.072 and
501.2041 in their en-
tirety....
...Gonzalez,
978 F.3d at 1271 n.12 (quotation
marks omitted).
* * *
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....
...(2) by imposing disclosure requirements. Here’s a brief rundown.
S.B. 7072’s content-moderation restrictions all limit plat-
forms’ ability to exercise editorial judgment and thus trigger First
Amendment scrutiny. The provisions that prohibit deplatforming
candidates (§
106.072(2)), deprioritizing and “shadow-banning”
content by or about candidates (§
501.2041(2)(h)), and censoring,
deplatforming, or shadow-banning “journalistic enterprises”
(§
501.2041(2)(j)) all clearly restrict platforms’ editorial...
...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, 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....
...ercial 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 commer-
cial”).
A different standard applies to S.B. 7072’s disclosure provi-
sions—§
106.072(4) and §
501.2041(2)(a), (c), (e), (4)....
...at 663–64, the State could argue
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60 Opinion of the Court 21-12355
that S.B. 7072 ensures that political candidates and journalistic en-
terprises are able to communicate with the public, see Fla. Stat.
§§
106.072(2);
501.2041(2)(f), (j)....
...mental interest, it hasn’t even attempted to—and we don’t think it
could—show that the burden that those provisions impose is “no
greater than is essential to the furtherance of that interest.”
O’Brien,
391 U.S. at 377. For instance, §§
106.072(2) and
501.2041(2)(h) prohibit deplatforming, deprioritizing, or shadow-
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62 Opinion of the Court 21-12355
banning cand...
...See Chamber of Progress Amicus Br. at 12. 23 That seems to
us the opposite of narrow tailoring.
We conclude that NetChoice has shown a substantial likeli-
hood of success on the merits of its claim that S.B. 7072’s content-
moderation restrictions—in Fla. Stat. §§
106.072(2),
501.2041(2)(b),
(c), (f), (g), (h), (j)—violate the First Amendment.
23Even worse, S.B....
... USCA11 Case: 21-12355 Date Filed: 05/23/2022 Page: 63 of 67
21-12355 Opinion of the Court 63
2
We assess S.B. 7072’s disclosure requirements—in
§§
106.072(4),
501.2041(2)(a), (c), (d), (e))—under the Zauderer
standard: A commercial disclosure requirement must be “reason-
ably related to the State’s interest in preventing deception of con-
sumers” and must not be “[u]njustified or u...
...On the ensuing burden question, NetChoice
hasn’t established a substantial likelihood that the provisions that
require platforms to publish their standards (§
501.2041(2)(a)),
24 This interest likely applies to all of the disclosure provisions with the possi-
ble exception of the candidate-free-advertising provision (§
106.072(4))....
...64 Opinion of the Court 21-12355
inform users about changes to their rules (§
501.2041(2)(c)), pro-
vide users with view counts for their posts, (§
501.2041(2)(e)), and
inform candidates about free advertising (§
106.072(4)), are unduly
burdensome or likely to chill platforms’ speech....
...ial judgment—such that
§
501.2041(2)(d) violates platforms’ First Amendment rights. Mila-
vetz,
559 U.S. at 250.
* * *
It is substantially likely that S.B. 7072’s content-moderation
restrictions (§§
106.072(2),
501.2041(2)(b), (c), (f), (g), (h), (j)) and its
requirement that platforms provide a thorough rationale for every
content-moderation action (§
501.2041(2)(d)) violate the First
Amendment. The same is not true of the Act’s other disclosure
provisions (§§
106.072(4),
501.2041(2)(a), (c), (e)) and its user-data-
access provision (§
501.2041(2)(i))....
...AFFIRM the preliminary injunction in part, and VACATE and
REMAND in part, as follows:
Provision Fla. Stat. § Likely Disposi-
Constitutionality tion
Candidate
106.072(2) Unconstitutional Affirm
deplatforming
Posts by/about
501.2041(2)(h) Unconstitutional Affirm
candidates
“Journalistic
501.2041(2)(j) Unconstitutional Affirm
enterprises”
Consistency...
...(per decision)
Standards
501.2041(2)(a) Constitutional Vacate
Rule changes
501.2041(2)(c) Constitutional Vacate
User view counts
501.2041(2)(e) Constitutional Vacate
Candidate “free adver-
106.072(4) Constitutional Vacate
tising”
User-data access
501.2041(2)(i) Constitutional Vacate
