On May 23, 2022, the Eleventh Circuit upheld an injunction on parts of Florida’s controversial social media “censorship” law, S.B. 7072, in NetChoice, LLC v. Att’y Gen., Fla.  In a 67-page opinion, the three-judge panel held that large swaths of the law’s provisions were unconstitutional, finding that social media companies are private actors and government regulation of content-moderation policies “unconstitutionally burden[ed]” their First Amendment rights.

S.B. 7072

Signed into law in 2021, S.B. 7072 likened social media platforms to the “new public town square . . . important for conveying public opinion as public utilities are for supporting modern society.”  Claiming that many such platforms “unfairly censored, shadow banned, de-platformed, and applied post-prioritization algorithms to Floridians,” S.B. 7072 introduced a number of provisions that—among other things—prohibited social media platforms from willfully de-platforming politicians and journalists or de-prioritizing posts by or about politicians.  Further, the law required social media platforms to publish and apply their “censorship, de-platforming, and shadow banning standards in a consistent manner among [their] users.”

The Ruling

Writing for the panel, U.S. Circuit Judge Kevin Newsom analogized content-moderation decisions to constitutionally-protected editorial judgments and expressive conduct.  As a result, “when platforms choose to remove users or posts, de-prioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity.”  The appeals court upheld the preliminary injunction of the law’s de-platforming and de-prioritization provisions, but let stand other provisions requiring social media platforms to publish their de-platforming standards, allow de-platformed users to access their data for 60 days, and inform users prior to changing content moderation rules.

Is Your Company A Social Media Platform?

S.B. 7072’s reach extends beyond the typical big tech social media service provider.  Under S.B. 7072, social media platforms include “[a]ny information service, system, Internet search engine, or access software provider” that (1) enables access by multiple users to a server; (2) operates a legal entity; (3) does business in Florida; and (4) either has annual gross revenues above $100 million or has at least 100 million monthly individual participants globally.  Reportedly, in 2021, “in the U.S. there are approximately 17,500 private companies with annual revenue greater than $100 million, compared to roughly 2,600 public companies above the same revenue threshold.”  The U.S. Census Bureau reports that the state of Florida has a population of 21.78 million people.

Smaller businesses will likely not meet S.B. 7072’s definition, but a broad interpretation of “social media platforms” potentially ensnares any large online service provider that might have some interest in moderating the content uploaded by its users.  For example, e-commerce companies or other online platforms that allow users to list goods or property to sell or rent out—houses, vehicles, clothes—often enforce sitewide content moderation policies, prohibiting users from uploading offensive content that may sometimes encompass political expression.  Similarly, service providers or other online platforms that solicit customer or user reviews could potentially find themselves subject to S.B. 7072. Sufficiently large platforms would ostensibly be subject to S.B. 7072, to the extent that they allow users to share content.

Because the Eleventh Circuit enjoined only some portions of S.B. 7072, much of the law’s provisions survived review.  Notably, the provision requiring platforms to “publish the standards, including detailed definitions, it uses or has used for determining how to censor, de-platform, and shadow ban” still stands. It is unclear as whether S.B. 7072 may be revised or narrowed in the future. In the interim, businesses that have any type of user content displayed on their platforms should keep an eye on the progression of this law and any similar laws that may be enacted in the U.S. and elsewhere.