## Facts

- Florida enacted S.B. 7072 to curb perceived political “censorship” by large social-media platforms.
- The law imposed (1) content-moderation restrictions (including limits on “deplatforming” political candidates and must-carry protections for certain speakers), (2) disclosure duties about moderation practices and decisions, and (3) a requirement that users be able to obtain their data in a portable format.
- NetChoice and CCIA, trade associations whose members include major platforms, sued state officials under 42 U.S.C. § 1983.
- Plaintiffs sought a preliminary injunction, arguing S.B. 7072 violated the First Amendment by restricting editorial discretion and compelling carriage of speech, and that some provisions were preempted by 47 U.S.C. § 230.
- The district court preliminarily enjoined enforcement of the challenged provisions.
- Florida appealed to the Eleventh Circuit.

## Issues

1. Whether social-media platforms engage in First Amendment-protected expressive activity when they curate, prioritize, remove, or label user content.
2. Whether S.B. 7072’s content-moderation restrictions likely violate the First Amendment by burdening platforms’ editorial judgment and compelling them to carry speech.
3. Whether Florida’s common-carrier and compelled-access analogies justify applying reduced First Amendment protection to platforms’ moderation decisions.
4. Whether S.B. 7072’s disclosure requirements and user-data portability requirement are likely unconstitutional at the preliminary-injunction stage.
5. Whether the district court abused its discretion by enjoining provisions for which plaintiffs did not show a substantial likelihood of success (including based on § 230 preemption).

## Decision

- The Eleventh Circuit affirmed in part and reversed in part the preliminary injunction.
- The court held platforms are private actors and their content-moderation decisions are likely protected exercises of editorial judgment.
- The court affirmed the injunction against most content-moderation restrictions because they likely impose unconstitutional, content- and speaker-based burdens on editorial discretion and cannot survive heightened scrutiny.
- The court affirmed the injunction against a disclosure provision requiring a “thorough rationale” for each moderation decision as likely unduly burdensome compelled speech.
- The court vacated the injunction as to certain less burdensome, general disclosure provisions and the user-data portability requirement because plaintiffs had not shown they were likely unconstitutional; enjoining them was an abuse of discretion.

## Legal Principles

- Private online platforms’ decisions to select, organize, rank, and remove content can constitute protected editorial judgment under the First Amendment.
- Laws that compel a private speaker to carry speech or that restrict editorial choices based on content or speaker identity are subject to heightened (and potentially strict) scrutiny.
- A state may not justify must-carry obligations for platforms merely by labeling them common carriers when the regulated activity is expressive curation.
- Compelled disclosures may be permissible when general and informational, but can violate the First Amendment when they demand ongoing, individualized explanations that materially burden editorial discretion.
- Preliminary injunctions require a substantial likelihood of success on the merits; courts abuse discretion by enjoining provisions where that showing is not made.

## Conclusion

The Eleventh Circuit held that Florida likely violated the First Amendment by restricting large platforms’ protected editorial discretion through must-carry and anti-deplatforming rules, while allowing enforcement of certain more general disclosure and data-portability requirements that plaintiffs had not shown were likely unconstitutional at the preliminary-injunction stage.


NetChoice, LLC v. Att’y Gen., State of Fla., 34 F.4th 1196 (11th Cir. 2022)