NetChoice v. Moody

Court: U.S. District Court for the Northern District of Florida

Date Filed: June 14, 2021

Background: In May 2021, Florida Gov. Ron DeSantis signed S.B. 7072, a law that prohibits social media companies from “willfully deplatforming” Floridian political candidates by suspending or barring them.

Backed by stiff daily fines for platforms or sites that fail to comply, the new law compels private communications platforms to carry speech that they would not otherwise host. It also allows the state to regulate how platforms curate, edit or comment on that speech.

Days after the governor signed the law, two tech industry business groups — NetChoice LLC and the Computer Communications Industry Association — sued Florida state officials, including the attorney general, challenging the constitutionality of the law and urging the U.S. District Court for the Northern District of Florida to issue a preliminary injunction enjoining state officials from enforcing sections of the law.

Our Position: The district court should grant the business groups’ request for a preliminary injunction.

• The law’s provision forcing online platforms to carry the speech of political candidates violates First Amendment protections for the free flow of information to the public.
• The law’s prohibition on content moderation is unconstitutional because it is contrary to the U.S. Supreme Court’s 1974 ruling in Miami Herald Publishing Co. v. Tornillo, which held that the First Amendment protects a newspaper’s “exercise of editorial control and judgment,” and it impairs newsgathering rights.

Deanna K. Shullman of Shullman Fugate represented the media coalition in this friend-of-the-court brief.

Quote: “Vesting the censorial power in the government to interfere with online platforms’ exercise of editorial control and judgment is antithetical to the public’s interest in freely receiving and disseminating information.”

Related: The Reporters Committee has also filed friend-of-the-court briefs in NetChoice v. Paxton, a challenge to a similar law in Texas that, if allowed to take effect, would place new restrictions on the content moderation practices of social media platforms in order to root out perceived bias by the platforms.

Updates: On June 30, 2021, a federal judge blocked state officials from enforcing Florida’s deplatforming law. The state then appealed to the U.S. Court of Appeals for the Eleventh Circuit. On Nov. 15, 2021, attorneys from Shullman Fugate filed a friend-of-the-court brief on behalf of the Reporters Committee and other media and First Amendment nonprofit organizations. The brief, drafted with assistance from students in the University of Virginia School of Law First Amendment Clinic, argues that Florida S.B. 7072 is unconstitutional. The brief pointed out that such a restriction amounts to an unacceptable substitution of the government’s editorial discretion for that of the publisher (in this case, certain social media platforms). The brief also argued that the lack of a limiting principle on S.B. 7072’s effect means that it risks stifling the emergence of “new media” platforms, such as those that independent journalists and freelancers use to publish their work. On May 23, 2022, the Eleventh Circuit concluded that significant portions of S.B. 7072 violate the First Amendment. The appeals court upheld, however, several of the law’s disclosure requirements.

NetChoice and the Computer and Communications Industry Association petitioned the U.S. Supreme Court to hear the case, and in September 2023, the justices agreed to review both NetChoice v. Moody and NetChoice v. Paxton, the business groups’ challenge to a similar law in Texas that, if allowed to take effect, would place new restrictions on the content moderation practices of social media platforms in order to root out perceived bias by the platforms. On Dec. 5, 2023, the Reporters Committee — joined by a coalition of civil liberties groups and organizations that defend constitutional protections for booksellers, film studios, video game publishers, and more — filed a friend-of-the-court brief urging the Supreme Court to reject the Florida and Texas laws as unconstitutional. The brief argues, among other things, that the First Amendment forbids both direct interference with a private speaker’s exercise of editorial judgment and disclosure mandates that target the exercise of editorial judgment.

On July 1, 2024, the U.S. Supreme Court vacated the Eleventh Circuit’s decision in this case and the Fifth Circuit’s decision in NetChoice v. Paxton, sending both cases back to the lower courts for reconsideration. In its decision, the Court makes clear that social media platforms are protected by the First Amendment when they exercise editorial discretion and reaffirmed that “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.”

U.S. Supreme Court brief:

Eleventh Circuit brief:

District Court brief: