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US appeals court rejects Florida social media law, finds tech giants have First Amendment rights

Alexis Keenan
·Reporter
·3 min read

A U.S. appeals court on Monday blocked a controversial Florida law that would ban Facebook, Twitter and other social media sites from moderating political speech, kicking political candidates off their platforms, and removing posts from so-called journalistic enterprises.

In an order issued on Monday, a three-judge panel for 11th Circuit Court of Appeals unanimously upheld a Florida judge's injunction that blocked application of the law passed last year. The court let stand part of the law that requires social media companies to disclose their content moderation criteria. Enforcement of the statute, known as SB 7072, has been on hold pending challenges from Big Tech lobbyist NetChoice.

The decision further entrenches a legal split over whether the First Amendment’s speech protections can be used to stop social media companies from moderating content as Republican lawmakers accuse Facebook and others of muzzling conservative voices.

In its ruling, the 11th Circuit panel ruled that the First Amendment actually protects the right of social media companies to moderate content however they see fit. In addition, the court found that the Florida law unconstitutionally infringed on social media companies’ protected right to exercise editorial judgment, through content moderation.

NEW YORK, UNITED STATES - 2020/10/14: A man wearing a face mask walks past a Twitter logo outside their New York City headquarters. Facebook and Twitter took steps to limit the spread of a controversial New York Post article critical of Joe Biden, sparking outrage among conservatives and stoking debate over how social media platforms should tackle misinformation ahead of the US election. (Photo by John Nacion/SOPA Images/LightRocket via Getty Images)

“We hold that it is substantially likely that social media companies — even the biggest ones — are 'private actors' whose rights the First Amendment protects,” the appeals court held. "The State of Florida insists that they aren’t [private actors], 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 'silence' 'conservative' speech in favor of a 'radical leftist' agenda."

The 11th circuit, in upholding the injunction, now stands somewhat at odds with the Fifth Circuit Court of Appeals in Texas, which last week issued a ruling allowing a Texas law limiting social media content moderation to go into effect.

Texas statute HB 20 requires large platforms like Twitter (TWTR), Meta's Facebook and Instagram (FB), TikTok, and YouTube (GOOG, GOOGL) to publish all user posts that express a “viewpoint.” Tech lobbyists are challenging the statute on First Amendment and other grounds, and for now, they’re asking the high court to block the law, after a lower court ruled in a separate injunction request that it was unconstitutional.

NetChoice and Computer and Communications Industry Association, which represent dozens of social media companies, apps, and other tech companies, including Yahoo, made an emergency application to the Supreme Court asking it to vacate the 5th Circuit Court of Appeals decision reinstating Texas' law.

“The First Amendment protects platforms and their right to moderate content as they see fit — and the government can’t force them to host content they don’t want,” Carl Szabo, vice president and general counsel of NetChoice, said in a statement sent to Yahoo Finance. “This makes it even more likely that the U..S Supreme Court will overturn the 5th Circuit’s split decision on the similar Texas law.”

Florida’s SB 7072 was signed into law by Florida Governor Ron DeSantis in May 2021.

In addition to limiting social media platforms’ ability to kick off users and prioritize or deprioritize posts from political candidates, it requires the companies to offer an opt-out feature for users to exempt their accounts from algorithmic sorting. Under the law, covered platforms would be required to provide a detailed rationale for all content-moderation decisions.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

This story was updated to add that the appellate court kept the Florida law's disclosure requirement intact.

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