# NETCHOICE LLC v. MOODY

> District Court, N.D. Florida · June 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10116460

## Case

- **Court:** District Court, N.D. Florida
- **Decided:** June 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10116460

## How later opinions describe it (automated extraction)

- stating that prior cases, including those allowing greater regulation of broadcast media, “provide no basis for qualifying the level of First Amendment scrutiny that should be applied” to the internet

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

NETCHOICE, LLC et al.,

Plaintiffs,

v. CASE NO. 4:21cv220-RH-MAF

ASHLEY BROOKE MOODY et al.,

Defendants.

____________________________________/

PRELIMINARY INJUNCTION

The State of Florida has adopted legislation that imposes sweeping
requirements on some but not all social-media providers. The legislation applies
only to large providers, not otherwise-identical but smaller providers, and
explicitly exempts providers under common ownership with any large Florida
theme park. The legislation compels providers to host speech that violates their
standards—speech they otherwise would not host—and forbids providers from
speaking as they otherwise would. The Governor’s signing statement and
numerous remarks of legislators show rather clearly that the legislation is
viewpoint-based. And parts contravene a federal statute. This order preliminarily
enjoins enforcement of the parts of the legislation that are preempted or violate the
First Amendment.

I. The Lawsuit
The plaintiffs are NetChoice, LLC and Computer & Communications
Industry Association. Both are trade associations whose members include social-

media providers subject to the legislation at issue. The plaintiffs assert the rights of
their affected members and have standing to do so. See, e.g., Hunt v. Wash. State
Apple Advert. Comm’n, 432 U.S. 333, 342-43 (1977).
The defendants are the Attorney General of Florida, the members of the

Florida Elections Commission, and a Deputy Secretary of the Florida Department
of Management Services, all in their official capacities. The plaintiffs named the
Deputy Secretary because the Secretary’s position was vacant. Each of the

defendants has a role in enforcement of the provisions at issue and is a proper
defendant under Ex parte Young, 209 U.S. 123 (1908). For convenience, this order
sometimes refers to the defendants simply as “the State.”
The complaint challenges Senate Bill 7072 as adopted by the 2021 Florida

Legislature (“the Act”). The Act created three new Florida statutes: § 106.072,
§ 287.137, and § 501.2041. The Act also included findings and a severability
clause. The Act is scheduled to take effect on July 1, 2021.
Count 1 of the complaint alleges the Act violates the First Amendment’s
free-speech clause by interfering with the providers’ editorial judgment,

compelling speech, and prohibiting speech. Count 2 alleges the Act is vague in
violation of the Fourteenth Amendment. Count 3 alleges the Act violates the
Fourteenth Amendment’s equal protection clause by impermissibly discriminating

between providers that are or are not under common ownership with a large theme
park and by discriminating between providers that do or do not meet the Act’s size
requirements. Count 4 alleges the Act violates the Constitution’s dormant
commerce clause. Count 5 alleges the Act is preempted by 47 U.S.C. § 230(e)(3),

which, together with § 230(c)(2)(A), expressly prohibits imposition of liability on
an interactive computer service—this includes a social-media provider—for action
taken in good faith to restrict access to material the service finds objectionable.

The plaintiffs have moved for a preliminary injunction. The motion has been
fully briefed and orally argued. Each side has submitted evidentiary material. The
motion is ripe for a decision.
II. Preliminary-Injunction Standard

As a prerequisite to a preliminary injunction, a plaintiff must establish a
substantial likelihood of success on the merits, that the plaintiff will suffer
irreparable injury if the injunction does not issue, that the threatened injury

outweighs whatever damage the proposed injunction may cause a defendant, and
that the injunction will not be adverse to the public interest. See, e.g., Charles H.
Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. 2005); Siegel v.

LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc).
This order addresses these prerequisites. The order addresses the merits
because likelihood of success on the merits is one of the prerequisites. With further

factual development, the analysis may change. Statements in this order about the
facts should be understood to relate only to the current record and the properly
considered material now available. Statements about the merits should be
understood only as statements about the likelihood of success as viewed at this

time.
III. The Statutes
A. Terminology

Before setting out the substance of the challenged statutes, a word is in order
about terminology. This order sometimes uses the term “social-media provider” to
refer to what most people on the street would probably understand that term to
mean—so YouTube, Facebook, Twitter, and dozens of smaller but similar

providers. The distinguishing characteristic is perhaps this: the primary function of
a social-media provider, or at least a primary function, is to receive content from
users and in turn to make the content available to other users. This is hardly a

precise definition, but none is needed; the term is used only for purposes of this
order. The term “social-media provider,” as used in this order, is not limited to
providers who are covered by the challenged statutes; the term is used instead to

apply to all such entities, including those smaller than the providers covered by the
statutes and those under common ownership with a large theme park.
The challenged statutes, in contrast, use a slightly different term, “social

media platform.” See Fla. Stat. § 501.2041(1)(g) (emphasis added). There is no
significance to this order’s use of “provider” to describe all social-media entities
instead of “platform”—the word the statutes use to define the more limited set of
entities covered by the statutes. The order just needs different terms to refer to the

substantially different sets of entities.
When this order uses “social media platform”—the statutory term—with or
without quotation marks, the reference ordinarily will be to an entity that both

meets the statutory definition and is a social-media provider as described above.
This order sometimes shortens the phrase to a single word: “platform.” At least on
its face, the statutory definition also applies to systems nobody would refer to as
social media; the definition says nothing about sharing content with other users.

The State says the definition should nonetheless be understood to be limited to
providers of social media within the common understanding—the State says this
comports with the statutory findings and the statutes’ obvious purpose. The State

may be correct. For present purposes it makes no difference.
B. Removing Candidates
A social-media provider sometimes bars a specific user from posting on the

provider’s site. This can happen, for example, when a user violates the provider’s
standards by engaging in fraud, spreading a foreign government’s disinformation,
inciting a riot or insurrection, providing false medical or public-health information,

or attempting to entice minors for sexual encounters.
Newly enacted Florida Statutes § 106.072 prohibits a social media platform
from barring from its site any candidate for office—that is, any person who has
filed qualification papers and subscribed to the candidate’s oath. See Fla. Stat.

§ 106.011(3)(e). It is a low bar.
C. Posts “By or About” a Candidate
A social-media provider sometimes takes down a user’s post, sometimes

restricts access to a post, and sometimes adds content to a post, saying, for
example, that a post has been determined not to be true or that accurate information
on the subject can be found at a specified location. And a social-media provider
sometimes rearranges content on its site, including, for example, by making more

readily available to a user content the provider believes the user will most wish to
see. Social-media providers also often elevate content—make it more readily
available to chosen users—when paid by advertisers to do so. Social-media

providers routinely use algorithms as part of these processes.
Florida Statutes § 501.2041(2)(h) prohibits a social media platform from
using “post-prioritization or shadow banning algorithms” for content “posted by or

about a user” who is known by the platform to be a candidate for office. The
statute does not define “about” a candidate. “Post-prioritization” means “action by
a social media platform to place, feature, or prioritize certain content or material

ahead of, below, or in a more or less prominent position than others in a newsfeed,
a feed, a view, or in search results.” Fla. Stat. § 501.2041(1)(e). But the term does
not apply to ads—to content the platform is paid to carry. Id. “Shadow ban” means
action by a social media platform “to limit or eliminate the exposure of a user or

content or material posted by a user to other users of the social media platform.”
Id. § 501.2041(1)(f).
At least by its terms, § 501.2041(2)(h) apparently prohibits a social media

platform from using an algorithm to put a candidate’s post in the proper feeds—to
put the post in the feed of a user who wishes to receive it or to exclude the
candidate’s post from the feed of a user who does not wish to receive it. Including
a post in the feed of a user who wishes to receive it places the post ahead of and in

a more prominent position that the many posts the user will not receive at all.
Excluding a post from the feed of a user who does not wish to receive it will
eliminate the user’s exposure to the post.
In any event, the statute does not explain how, if the platform cannot use an
algorithm “for content” by or about a candidate, the platform can know, before it

has violated the statute by using an algorithm, whether a post is by or about a
candidate.
The statute has a paid-content exception to the post-prioritization ban: post-

prioritization of “certain content or material” from or about a candidate based on
payments from the candidate or a third party is not a violation. The statute does not
specify what “certain” refers to—if it just means all such paid content, the word
“certain” is superfluous. But the whole paid-content exception may be superfluous

anyway; the definition of post-prioritization has its own paid-content exception.
See id. § 501.2041(1)(e).
D. Posts by a “Journalistic Enterprise”

Florida Statutes § 501.2041(2)(j) prohibits a social media platform from
taking action to “censor, deplatform, or shadow ban” a “journalistic enterprise”
based on the content of its publication or broadcast. “Censor” is broadly defined to
include not just deleting content but adding content:

“Censor” includes any action taken by a social media platform
to delete, regulate, restrict, edit, alter, inhibit the publication or
republication of, suspend a right to post, remove, or post an
addendum to any content or material posted by a user. The term
also includes actions to inhibit the ability of a user to be viewable
by or to interact with another user of the social media platform.
Fla. Stat. § 501.2041(1)(b). “Deplatform” means to ban a user permanently or for
longer than 14 days. Id. § 501.2041(1)(c). “Shadow ban” has the meaning set out

above. See id. § 501.2041(1)(f).
The statute defines “journalistic enterprise” in a manner that covers many
entities that are engaged in journalism but many that are not; any retailer who does

business in Florida, has a website of substantial size, and fills 100,000 online
orders per month apparently qualifies. A small newspaper, in contrast—one with
fewer than 50,000 paid subscribers and fewer than 100,000 active monthly users—
does not qualify, no matter how high its journalistic standards. The definition

provides:
“Journalistic enterprise” means an entity doing business in
Florida that:

1. Publishes in excess of 100,000 words available online with at
least 50,000 paid subscribers or 100,000 monthly active users;

2. Publishes 100 hours of audio or video available online with
at least 100 million viewers annually;

3. Operates a cable channel that provides more than 40 hours of
content per week to more than 100,000 cable television
subscribers; or

4. Operates under a broadcast license issued by the Federal
Communications Commission.

Fla. Stat. § 501.2041(1)(d).
The restrictions on a platform’s treatment of posts by journalistic enterprises
have two exceptions: they do not apply to obscenity or paid content.

E. Opting Out of Post-Prioritization and Shadow Banning
Florida Statutes § 501.2041(2)(f) requires a social media platform to
“[c]ategorize” algorithms used for post-prioritization and shadow banning and to

allow a “user” to “opt out of post-prioritization and shadow banning algorithm
categories to allow sequential or chronological posts and content.” On its face, this
allows a user who posts content to insist it be shown to other users in chronological
order—not in the order the recipient has otherwise specified or the order that,

based on the recipient’s profile and history, the social media platform believes
would be most preferred by or useful to the recipient. It is not clear how a social
media platform would display content posted by multiple users who all opt out—a

wild west of content on which the platform would be prohibited from using an
algorithm.
The State says, though, that “user” in § 501.2041(2)(f) means only a
recipient of information, not a person who posts information. But “user” is

explicitly defined in the statute to mean a person who resides or is domiciled in
Florida and “has an account on a social media platform, regardless of whether the
person posts or has posted content or material to the social media platform.” Id.

§ 501.2041(1)(h). Those who post content have accounts, no less than those who
receive content. And “user” is consistently used in other provisions to include
those who post content, not just recipients. See, e.g., id. § 501.2041(2)(d)

(prohibiting a social media platform from censoring or shadow banning “a user’s
content” or deplatforming “a user” without meeting specific conditions); id.
§ 501.2041(2)(e) (allowing “a user” to request the number of participants “who

were provided or shown the user’s content or posts”) (emphasis added); id.
§ 501.2041(2)(h) (restricting treatment of content “posted by . . . a user”)
(emphasis added); see also id. § 501.2041(2)(b), (c), (g) & (i).
F. Consistent Application of Standards

Florida Statutes § 501.2041(2)(a) requires a social media platform to
“publish the standards, including detailed definitions, it uses or has used for
determining how to censor, deplatform, and shadow ban.” And § 501.2041(2)(b)

requires a social media platform to “apply censorship, deplatforming, and shadow
banning standards in a consistent manner among its users on the platform.” The
State says “standards,” in § 501.2041(2)(b), means the platform’s own standards,
as published under § 501.2041(2)(a). That is probably correct.

The statute does not define “consistent manner.” And the statute does not
address what a social media platform should do when the statute itself prohibits
consistent application of the platform’s standards—for example, when a candidate

engages in conduct that would appropriately lead to deplatforming any other
person, or when content “by or about” a candidate, if by or about anyone else,
would be post-prioritized, or when a “journalistic enterprise” posts content that

would otherwise be censored.
G. Changing the Standards
Florida Statutes § 501.2041(2)(c) prohibits a social media platform from

changing its “user rules, terms, and agreements”—this apparently includes the
standards published under § 501.2041(2)(a)—more often than once every 30 days.
The provision requires the social media platform to inform each user about any
changes before they take effect.

H. Information
Florida Statutes § 501.2041(2) includes additional provisions requiring
social media platforms to provide information to users.

Under § 501.2042(2)(d), a platform must give notice to a user who is
deplatformed or who posts content that is censored or shadow banned. Under
§ 501.2041(2)(i), the platform must allow a deplatformed user access to the user’s
content for 60 days after the notice. The notice for censored content must be

especially detailed: it must include a “thorough rationale explaining the reason that
the social media platform censored the user,” § 501.2041(3)(c), and a “precise and
thorough explanation of how the social media platform became aware of the

censored content or material, including a thorough explanation of the algorithms
used, if any, to identify or flag the user’s content or material as objectionable.” Id.
§ 501.2041(3)(d). The notice need not be given, however, for censored content that

is obscene. Id. § 501.2041(4).
Under § 501.2041(2)(e), a platform must, on request, tell a user how many
other participants were shown the user’s posts or content.

Under § 501.2041(2)(g), a platform must provide users annual notice of
algorithms used for post-prioritization and shadow banning and of their right to opt
out of the use of those algorithms.
I. Antitrust

Florida Statutes § 287.137 allows the State to debar from public contracting
a social media platform that has committed, or sometimes just been accused of, an
antitrust violation. The section raises issues under both state and federal law, but it

poses no threat of immediate, irreparable harm to social media platforms. The
statute is not further addressed in, or enjoined by, this order.
IV. Likelihood of Success on the Merits
A. 47 U.S.C. § 230

In Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710, at
*3–4 (N.Y. Sup. Ct. May 24, 1995), an anonymous user posted allegedly
defamatory content on an electronic bulletin board—an earlier version of what

today might be called social media. The court said that if the provider of such a
bulletin board did not undertake to review posted content—much as a librarian
does not undertake to review all the books in a library—the provider would not be

deemed the publisher of a defamatory post, absent sufficient actual knowledge of
the defamatory nature of the content at issue. On the facts of that case, though, the
provider undertook to screen the posted content—to maintain a “family oriented”

site. The court held this subjected the provider to liability as a publisher of the
content.
At least partly in response to that decision, which was deemed a threat to
development of the internet, Congress enacted 47 U.S.C. § 230. Congress sought

“to encourage service providers to self-regulate the dissemination of offensive
material over their services,” Zeran v. America Online, Inc., 129 F.3d 327, 331
(4th Cir. 1997), and to allow “computer service providers to establish standards of

decency without risking liability for doing so,” Domen v. Vimeo, Inc., 991 F.3d 66,
73 (2d Cir. 2021).
Under § 230, a provider of interactive computer services—this includes, as
things have evolved, a social-media provider—cannot be “held liable” for any

action “taken in good faith to restrict access to or availability of material that the
provider . . . considers to be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable.” Id. § 230(c)(2). The statute says it does not

prevent a state from enforcing any consistent state law—the federal statute thus
does not preempt the field—but the statute does expressly preempt inconsistent
state laws: “No cause of action may be brought and no liability may be imposed

under any State or local law that is inconsistent with this section.” Id. § 230(e)(3).
Florida Statutes § 106.072 prohibits a social media platform from
deplatforming a candidate for office and imposes substantial fines: $250,000 per

day for a statewide office and $25,000 per day for any other office. But
deplatforming a candidate restricts access to material the platform plainly
considers objectionable within the meaning of 47 U.S.C. § 230(c)(2). If this is done
in good faith—as can happen—the Florida provision imposing daily fines is

preempted by § 230(e)(3). Good faith, for this purpose, is determined by federal
law, not state law. Removing a candidate from a platform based on otherwise-
legitimate, generally applicable standards—those applicable to individuals who are

not candidates—easily meets the good-faith requirement. Indeed, even a mistaken
application of standards may occur in good faith.
The federal statute also preempts the parts of Florida Statutes § 501.2041
that purport to impose liability for other decisions to remove or restrict access to

content. See Fla. Stat. § 501.2041(6) (creating a private right of action for damages
for violations of § 501.2041(2)(b) and (2)(d)1; id. § 501.2041(2)(b) (requiring a
social media platform to apply censorship, deplatforming, and shadow banning

standards in a consistent manner); id. § 501.2041(2)(d)1 (prohibiting a social
media platform from deplatforming a user or censoring or shadow banning a user’s
content without notifying the user); § 501.2041(2) (making any violation of that

subsection an unfair or deceptive act or practice within the meaning of
§ 501.204—and thus providing a private right of action for damages under
§ 501.211).

Claims based on alleged inconsistency of a platform’s removal of some
posts but not others are preempted. See Domen, 991 F.3d at 73.
In sum, the plaintiffs are likely to prevail on their challenge to the preempted
provisions—to those applicable to a social media platform’s restriction of access to

posted material. This does not, however, invalidate other provisions; for those, the
plaintiffs’ challenge must rise or fall with their constitutional claims.
B. First Amendment

1. Application to Social-Media Providers
Although a primary function of social-media providers is to receive content
from users and in turn to make the content available to other users, the providers
routinely manage the content, allowing most, banning some, arranging content in

ways intended to make it more useful or desirable for users, sometimes adding the
providers’ own content. The plaintiffs call this curating or moderating the content
posted by users. In the absence curation, a social-media site would soon become

unacceptable—and indeed useless—to most users.
The plaintiffs say—correctly—that they use editorial judgment in making
these decisions, much as more traditional media providers use editorial judgment

when choosing what to put in or leave out of a publication or broadcast. The
legislative record is chock full of statements by state officials supporting the view
that the providers do indeed use editorial judgment. A constant theme of

legislators, as well as the Governor and Lieutenant Governor, was that the
providers’ decisions on what to leave in or take out and how to present the
surviving material are ideologically biased and need to be reined in.
Where social media fit in traditional First Amendment jurisprudence is not

settled. But three things are clear.
First, the State has asserted it is on the side of the First Amendment; the
plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds

with accepted constitutional principles. The First Amendment says “Congress”
shall make no law abridging the freedom of speech or of the press. The Fourteenth
Amendment extended this prohibition to state and local governments. The First
Amendment does not restrict the rights of private entities not performing

traditional, exclusive public functions. See, e.g., Manhattan Cmty. Access Corp. v.
Halleck, 139 S. Ct. 1921, 1930 (2019). So whatever else may be said of the
providers’ actions, they do not violate the First Amendment.
Second, the First Amendment applies to speech over the internet, just as it
applies to more traditional forms of communication. See, e.g., Reno v. ACLU, 521

U.S. 844, 870 (1997) (stating that prior cases, including those allowing greater
regulation of broadcast media, “provide no basis for qualifying the level of First
Amendment scrutiny that should be applied” to the internet).

Third, state authority to regulate speech has not increased even if, as Florida
argued nearly 50 years ago and is again arguing today, one or a few powerful
entities have gained a monopoly in the marketplace of ideas, reducing the means
available to candidates or other individuals to communicate on matters of public

interest. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the
Court rejected just such an argument, striking down a Florida statute requiring a
newspaper to print a candidate’s reply to the newspaper’s unfavorable assertions.

A similar argument about undue concentration of power was commonplace as the
social-media restrictions now at issue advanced through the Florida Legislature.
But here, as in Tornillo, the argument is wrong on the law; the concentration of
market power among large social-media providers does not change the governing

First Amendment principles. And the argument is also wrong on the facts.
Whatever might be said of the largest providers’ monopolistic conduct, the internet
provides a greater opportunity for individuals to publish their views—and for

candidates to communicate directly with voters—than existed before the internet
arrived. To its credit, the State does not assert that the dominance of large
providers renders the First Amendment inapplicable.

That brings us to issues about First Amendment treatment of social-media
providers that are not so clearly settled. The plaintiffs say, in effect, that they
should be treated like any other speaker. The State says, in contrast, that social-

media providers are more like common carriers, transporting information from one
person to another much as a train transports people or products from one city to
another. The truth is in the middle.
More generally, the plaintiffs draw support from three Supreme Court

decisions in which a state mandate for a private entity to allow unwanted speech
was held unconstitutional. On the State’s side are two Supreme Court decisions in
which a state or federal mandate for a private entity to allow unwanted speech was

held constitutional. Each side claims the cases on its side are dispositive, but this
case again falls in the middle. On balance, the decisions favor the plaintiffs.
The plaintiffs push hardest of Tornillo, which, as set out above, held
unconstitutional the Florida statute requiring a newspaper to allow a candidate to

reply to the newspaper’s unfavorable statements. But newspapers, unlike social-
media providers, create or select all their content, including op-eds and letters to
the editor. Nothing makes it into the paper without substantive, discretionary

review, including for content and viewpoint; a newspaper is not a medium invisible
to the provider. Moreover, the viewpoint that would be expressed in a reply would
be at odds with the newspaper’s own viewpoint. Social media providers, in

contrast, routinely use algorithms to screen all content for unacceptable material
but usually not for viewpoint, and the overwhelming majority of the material never
gets reviewed except by algorithms. Something well north of 99% of the content

that makes it onto a social media site never gets reviewed further. The content on a
site is, to that extent, invisible to the provider.
Similarly, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston, 515 U. S. 557 (1995), a state court ruled that the state’s public-

accommodation law required an association conducting a private parade to allow
participation by an organization advocating gay rights. The parade association
asserted the gay-rights group’s participation would contravene what the association

was attempting to communicate. The Supreme Court held the association had a
First Amendment right to exclude the gay-rights group. Again, though, the parade
involved a limited number of participants, all undoubtedly approved in the
association’s discretionary judgment, including for viewpoint. This was not an

invisible-to-the-provider event.
The third case on the plaintiffs’ side is Pacific Gas & Electric Co. v. Public
Utilities Commission of California, 475 U.S. 1 (1986). There a public utility

included in its billing envelopes its own viewpoint-laden newsletters. The state
directed the utility to include in its billing envelopes four times per year a private
watchdog organization’s newsletters setting out a viewpoint with which the utility

disagreed. The Supreme Court held this unconstitutional. The utility undoubtedly
knew precisely what went into its billing envelopes and newsletters; as in Tornillo
and Hurley, this was not an invisible-to-the-provider forum.

These three cases establish that a private party that creates or uses its
editorial judgment to select content for publication cannot be required by the
government to also publish other content in the same manner—in each of these
instances, content with which the party disagreed. But social-media providers do

not use editorial judgment in quite the same way. The content on their sites is, to a
large extent, invisible to the provider.
Even so, the activities of social media platforms that are the focus of the

statutes now at issue are not the routine posting of material without incident or the
routine exclusion without incident of plainly unacceptable content. These statutes
are concerned instead primarily with the ideologically sensitive cases. Those are
the very cases on which the platforms are most likely to exercise editorial

judgment. Indeed, the targets of the statutes at issue are the editorial judgments
themselves. The State’s announced purpose of balancing the discussion—reining
in the ideology of the large social-media providers—is precisely the kind of state

action held unconstitutional in Tornillo, Hurley, and PG&E.
On the other side, the State pushes hardest on Rumsfeld v. FAIR, 547 U.S. 47
(2006). There the Court upheld a federal statute conditioning law schools’ receipt

of federal funds on allowing military recruiters the same access as other recruiters
to the school’s facilities and students. The Court held this was, for the most part,
conduct, not speech. Indeed, the schools objected not primarily because they

disagreed with anything they expected the recruiters to do or say on campus, but
because they disagreed with the government’s policy on gays in the military. The
statute did not require the schools to say anything at all, nor did the statute prohibit
the schools from saying whatever they wished whenever and however they wished.

It was unlikely anyone would conclude, from the military recruiters’ presence, that
the schools supported the military’s policy.
Similarly, in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), a

shopping center refused to allow individuals to solicit petition signatures from
members of the public at the shopping center. The California Supreme Court held
the individuals had the right, under state law, to engage in the proposed activity.
The ruling did not compel the shopping center to say anything at all, and the ruling

did not prohibit the center from saying anything it wished, when and how it
wished. The United States Supreme Court said it was unlikely anyone would
attribute the solicitation activities to the shopping center and, with no state action
compelling the center to speak or restricting it from doing so, there was no
violation of the First Amendment.

FAIR and PruneYard establish that compelling a person to allow a visitor
access to the person’s property, for the purpose of speaking, is not a First
Amendment violation, so long as the person is not compelled to speak, the person

is not restricted from speaking, and the message of the visitor is not likely to be
attributed to the person. The Florida statutes now at issue, unlike the state actions
in FAIR and PruneYard, explicitly forbid social media platforms from appending
their own statements to posts by some users. And the statutes compel the platforms

to change their own speech in other respects, including, for example, by dictating
how the platforms may arrange speech on their sites. This is a far greater burden on
the platforms’ own speech than was involved in FAIR or PruneYard.

In sum, it cannot be said that a social media platform, to whom most content
is invisible to a substantial extent, is indistinguishable for First Amendment
purposes from a newspaper or other traditional medium. But neither can it be said
that a platform engages only in conduct, not speech. The statutes at issue are

subject to First Amendment scrutiny.
2. Strict Scrutiny
Viewpoint- and content-based restrictions on speech are subject to strict

scrutiny. See, e.g., Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015). A law
restricting speech is content-based if it “applies to particular speech because of the
topic discussed or the idea or message expressed.” Id. at 163 (citing Sorrell v. IMS

Health, Inc., 564 U.S. 552, 563-64 (2011), Carey v. Brown, 447 U.S. 455, 462
(1980), and Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). Laws that
are facially content-neutral, but that cannot be justified without reference to the

content of the regulated speech, or that were adopted because of disagreement with
the speaker’s message, also must satisfy strict scrutiny. See Reed, 576 U.S. at 164.
These principles plainly require strict scrutiny here. The Florida statutes at
issue are about as content-based as it gets. Thus, for example, § 106.072 applies to

deplatforming a candidate, not someone else; this is a content-based restriction.
Similarly, § 501.2041(2)(h) imposes restrictions applicable only to material posted
“by or about a candidate.” This again is content-based. And § 501.2041(2)(j)

prohibits a social media platform from taking action based on the “content” of a
journalistic enterprise’s post; prohibiting a platform from making a decision based
on content is itself a content-based restriction. That the statutes are content-based
in these and other respects triggers strict scrutiny.

The plaintiffs assert, too, with substantial factual support, that the actual
motivation for this legislation was hostility to the social media platforms’
perceived liberal viewpoint. Thus, for example, the Governor’s signing statement

quoted the bill’s sponsor in the House of Representatives: “Day in and day out, our
freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in
Silicon Valley. But in Florida, we said this egregious example of biased silencing

will not be tolerated.” Similarly, in another passage quoted by the Governor, the
Lieutenant Governor said, “What we’ve been seeing across the U.S. is an effort to
silence, intimidate, and wipe out dissenting voices by the leftist media and big

corporations. . . . Thankfully in Florida we have a Governor that fights against big
tech oligarchs that contrive, manipulate, and censor if you voice views that run
contrary to their radical leftist narrative.” This viewpoint-based motivation,
without more, subjects the legislation to strict scrutiny, root and branch. See, e.g.,

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)
(“The government must abstain from regulating speech when the specific
motivating ideology or the opinion or perspective of the speaker is the rationale for

the restriction.”) (citing Perry Ed. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 46 (1983)).
Moreover, these statements are consistent with the statutory definition of
“social media platform,” which extends only to, and thus makes the legislation

applicable only to, large entities—those with $100 million in revenues or 100
million monthly participants. As the Supreme Court has recognized, discrimination
between speakers is often a tell for content discrimination. See, e.g., Citizens

United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (“Speech restrictions
based on the identity of the speaker are all too often simply a means to control
content.”). That is the case here. The state has suggested no other basis for

imposing these restrictions only on the largest providers. And even without
evidence of an improper motive, the application of these requirements to only a
small subset of social-media entities would be sufficient, standing alone, to subject

these statutes to strict scrutiny. See, e.g., Minneapolis Star & Tribune Co. v.
Minnesota Comm’r of Revenue, 460 U.S. 575, 591 (1983); Arkansas Writers’
Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987).
Similar analysis applies to the treatment of “journalistic enterprises” in

§ 501.2041(2)(j). The statute affords their posts favored treatment—but to qualify,
an entity must meet the minimum size requirement of § 501.2041(1)(d).
Finally, the same is true of the exclusion for social-media providers under

common ownership with a large Florida theme park. The State asserted in its brief
that the provision could survive intermediate scrutiny, but the proper level of
scrutiny is strict, and in any event, when asked at oral argument, the State could
suggest no theory under which the exclusion could survive even intermediate

scrutiny. The State says this means only that the exclusion fails, but that is at least
questionable. Despite the obvious constitutional issue posed by the exclusion, the
Legislature adopted it, apparently unwilling to subject favored Florida businesses

to the statutes’ onerous regulatory burdens. It is a stretch to say the severability
clause allows a court to impose these burdens on the statutorily excluded entities
when the Legislature has not passed, and the Governor has not signed, a statute

subjecting these entities to these requirements.
To survive strict scrutiny, an infringement on speech must further a
compelling state interest and must be narrowly tailored to achieve that interest.

See, e.g., Reed, 576 U.S. at 171. These statutes come nowhere close. Indeed, the
State has advanced no argument suggesting the statutes can survive strict scrutiny.
They plainly cannot. First, leveling the playing field—promoting speech on one
side of an issue or restricting speech on the other—is not a legitimate state interest.

See, e.g., Arizona Free Enter. Club v. Bennett, 564 U.S. 721, 749-50 (2011).
Whatever might be said of any other allegedly compelling state interest, these
statutes are not narrowly tailored. Like prior First Amendment restrictions, this is

an instance of burning the house to roast a pig. See, e.g., Reno v. ACLU, 521 U.S.
at 882; Sable Commc’n of Cal., Inc. v. FCC, 492 U.S. 115, 131 (1989).
The plaintiffs are likely to prevail on the merits of their claim that these
statutes violate the First Amendment. There is nothing that could be severed and

survive.
3. Intermediate Scrutiny
The result would be the same under intermediate scrutiny—the level of

scrutiny that applies to some content-neutral regulations of speech. To survive
intermediate scrutiny, a restriction on speech must further an important or
substantial governmental interest unrelated to the suppression of free expression,

and the restriction must be no greater than essential to further that interest. The
narrow tailoring requirement is satisfied so long as the governmental interest
would be achieved less effectively absent the restriction. See Turner Broad. Sys.,

Inc. v. FCC, 512 U.S. 622, 662 (1994).
The provisions at issue here do not meet the narrow-tailoring requirement.
Indeed, some of the disclosure provisions seem designed not to achieve any
governmental interest but to impose the maximum available burden on the social

media platforms.
Intermediate scrutiny does not apply because these statutes are not content-
or viewpoint-neutral. And the statutes would not survive intermediate scrutiny

even if it applied.
C. Vagueness
Florida Statutes § 501.2041 is riddled with imprecision and ambiguity. But
this, without more, does not render the statute unconstitutional. As the State

correctly notes, uncertainty about a statute’s application to marginal cases—or
even to not-so-marginal cases—can be resolved through judicial construction. But
violations of this statute subject a social media platform to statutory damages that

seem more punitive than compensatory: up to $100,000 per claim.
Two provisions are especially vague. First, § 501.2041(2)(b) requires a
social media platform to apply its standards in a consistent manner, but as set out

supra at 12, this requirement is itself inconsistent with other provisions. Second,
§ 501.2041(2)(h) imposes a requirement that, as set out supra at 7-8, is
incomprehensible. Vagueness presents heightened concern in a statute that, like

this one, trenches on First Amendment interests. See, e.g., Wollschlaeger v. Gov.,
Fla., 848 F.3d 1293, 1320 (11th Cir. 2017).
This order need not and does not decide whether vagueness would provide
an independent ground for a preliminary injunction.

V. Other Prerequisites
The plaintiffs easily meet the other prerequisites to a preliminary injunction.
If a preliminary injunction is not issued, the plaintiffs’ members will sometimes be

compelled to speak and will sometimes be forbidden from speaking, all in violation
of their editorial judgment and the First Amendment. This is irreparable injury.
The threatened injury outweighs whatever damage the injunction may cause the
State. And the injunction will serve, not be adverse to, the public interest. When a

plaintiff is likely to prevail on the merits of a First Amendment claim, these other
prerequisites to a preliminary injunction are usually met. See, e.g., Otto v. City of
Boca Raton, 981 F.3d 854, 870 (11th Cir. 2020).

VI. Conclusion
The legislation now at issue was an effort to rein in social-media providers
deemed too large and too liberal. Balancing the exchange of ideas among private

speakers is not a legitimate governmental interest. And even aside from the actual
motivation for this legislation, it is plainly content-based and subject to strict
scrutiny. It is also subject to strict scrutiny because it discriminates on its face

among otherwise-identical speakers: between social-media providers that do or do
not meet the legislation’s size requirements and are or are not under common
ownership with a theme park. The legislation does not survive strict scrutiny. Parts
also are expressly preempted by federal law.

For these reasons,
IT IS ORDERED:
1. The plaintiffs’ motion for a preliminary injunction, ECF No. 22, is

granted.
2. The defendants Ashley Brooke Moody, Joni Alexis Poitier, Jason Todd
Allen, John Martin Hayes, Kymberlee Curry Smith, and Patrick Gillespie must
take no steps to enforce Florida Statutes §§ 106.072 or 501.2041 until otherwise

ordered. The preliminary injunction set out in this paragraph will take effect upon
the posting of security in the amount of $1,000, or an undertaking to pay up to
$1,000, for costs and damages sustained by a party found to have been wrongfully

enjoined. The preliminary injunction binds the defendants and their officers,
agents, servants, employees, and attorneys—and others in active concert or
participation with any of them—who receive actual notice of this injunction by

personal service or otherwise.
SO ORDERED on June 30, 2021.
s/Robert L. Hinkle
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10116460. Public record. Not legal advice.