Legal Sidebari

Free Speech Challenges to Florida and Texas
Social Media Laws
May 25, 2022
Two U.S. Courts of Appeals recently took different positions on the validity of state laws that restricted
internet services’ ability to moderate user content. Almost a year after Florida enacted Senate Bill 7072,
the Eleventh Circuit largely upheld a preliminary injunction ruling the law likely unconstitutional,
preventing Florida’s law from taking effect. This ruling contrasts with a Fifth Circuit order staying a
preliminary injunction against a somewhat similar Texas law, H.B. 20, and allowing that Texas law to take
effect. As explained in more detail in this Legal Sidebar, these two courts’ actions appear to be based on
different views of whether these laws likely violate the constitutional free speech rights of online
platforms. This Legal Sidebar begins by reviewing the relevant constitutional background, then explains
both states’ laws and the First Amendment aspects of the legal challenges to those laws.
First Amendment and Editorial Discretion
As explored in this CRS Report, the Supreme Court has recognized that private entities may exercise
constitutionally protected “editorial control” when they choose what speech to publish or how to present
it. For example, in one case, the Court held that a state violated the First Amendment’s Free Speech
Clause when it sought to force newspapers to publish political candidates’ responses to editorials
criticizing their character. Newspapers and cable operators are classic examples of companies that
exercise editorial discretion, and the Court has recognized that other private businesses, including public
utilities and parade organizers, may also have constitutionally protected rights to exclude speech in
certain circumstances. In one case, the Court stated the principle as follows: “when dissemination of a
view contrary to one’s own is forced upon a speaker intimately connected with the communication
advanced, the speaker’s right to autonomy over the message is compromised.”
In other decisions, however, the Supreme Court has held that private entities may not assert a
constitutional right to exclude third parties if the hosting decision is not “inherently expressive.” The
Supreme Court has suggested one factor in determining whether the hosting decision is expressive is
whether anyone would attribute the speech of those third parties to the host. One federal court of appeals
concluded that the First Amendment did not bar net neutrality regulations requiring broadband providers
to host lawful content. This ruling was based on the premise that these providers did not exercise
protected editorial discretion, but instead neutrally transmitted all third-party speech in the same way as a
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common carrier. (Historically, common carriers were companies such as railroads or telecommunications
services who held themselves out to the public as carrying passengers, goods, or communications for a
fee.) The appeals court cautioned, however, that it might have resolved the case differently if the
providers instead “engage[d] in editorial discretion” by “selecting which speech to transmit.”
Accordingly, one critical question for lower courts evaluating laws or lawsuits that would require a
website to host unwanted speech has been whether a site’s hosting decision is expressive. A related
question is whether the website in fact exercises editorial discretion.
A number of trial courts facing this issue have concluded that the First Amendment barred lawsuits
seeking to hold websites, search engines, and social media companies liable for their decisions to not host
certain content. For example, one trial court concluded that the First Amendment barred a lawsuit brought
under federal and state civil rights laws, when the plaintiffs tried to hold a search engine liable for
designing “its search-engine algorithms to favor certain expression on core political subjects.” The court
ruled that the plaintiffs’ theory of liability depended on the premise that the search engine “exercise[d]
editorial control” protected by the First Amendment. The court believed that allowing the lawsuits to
proceed would violate the principle, stated by the Supreme Court, “that a speaker has the autonomy to
choose the content of his own message.”
Florida
Senate Bill 7072
Florida’s social media law, signed into law on May 24, 2021, restricts internet services’ ability to
moderate content and imposes certain disclosure obligations on those services. The law primarily applies
to “social media platforms,” defined broadly to include any service that “[p]rovides or enables computer
access by multiple users to a computer server,” operates as a “legal entity,” and does business in the state.
Partially tracking the federal definition of “interactive computer service,” this term could therefore
include services such as search engines or internet service providers. The state law originally excluded
services owned by companies that also operate a theme park or entertainment complex, although that
exclusion was repealed in April 2022. Further, the definition only includes larger companies that meet
certain revenue or user thresholds.
The content moderation provisions of the law limit platforms’ ability to engage in deplatforming,
censorship, shadow-banning, or post prioritization—all terms defined in the law. The law requires
platforms to apply their moderation standards “in a consistent manner,” and provides that platforms can
only change their “user rules, terms, and agreements” once every 30 days. It also requires platforms to
allow users to opt out of certain content-moderation practices. There are additional restrictions prohibiting
platforms from deplatforming or restricting the content of political candidates or “journalistic
enterprises.”
The law also contains several disclosure provisions, including requirements to publish standards for
moderating content, inform users about changes to terms of service, and provide data about how many
people viewed a user’s posts. The law also requires platforms to give users notice and explanations before
the platform may censor, deplatform, or shadow ban users’ content.
NetChoice v. Moody
As discussed in a prior Legal Sidebar, a federal trial court granted a preliminary injunction temporarily
staying enforcement of Florida’s law on June 30, 2021. The trial court held that the law was likely
unconstitutional under the First Amendment after concluding that it discriminated based on the content
and viewpoint of speech. Florida appealed that decision to the Eleventh Circuit.

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On May 23, 2022, the Eleventh Circuit partially affirmed this preliminary injunction, agreeing that many
aspects of the law were likely unconstitutional but upholding some of the disclosure provisions. The court
first held that platforms engaged in content moderation are exercising protected “editorial judgment that is
inherently expressive.” The court stated that “when a platform removes or deprioritizes a user or post, it
makes a judgment about whether and to what extent it will publish information to its users—a judgment
rooted in the platform’s own views about the sorts of content and viewpoints that are valuable and
appropriate for dissemination on its site.” Citing a variety of platforms’ moderation policies, the court
noted that by removing certain users or types of content, platforms “cultivate different types of
communities,” and sometimes “promote explicitly political agendas.” This, in the court’s view, was
protected editorial activity. The state had argued that the covered platforms should be treated as common
carriers, who could be held to equal access obligations. The court disagreed, stating that unlike
telecommunications service providers like telegraph companies, social media platforms had never acted
as common carriers but had instead always restricted the use of their platforms. The court further
concluded that the state could not designate the platforms as common carriers if it would abrogate the
platforms’ First Amendment rights.
Accordingly, the court ruled that the law triggered First Amendment scrutiny by restricting platforms’
“ability to speak through content moderation.” The content moderation provisions limited the platforms’
editorial judgment, and the disclosure provisions—with one exception—indirectly burdened that
judgment. The exception: the court believed the provision granting users the right to access existing data
about the number of people who viewed their content likely did not place any significant burden on
editorial judgment and therefore did not trigger any level of constitutional scrutiny.
Although the court held that both the content moderation provisions and the rest of the disclosure
requirements affected the platforms’ editorial judgment, it treated those two types of provisions differently
in its First Amendment analysis. The court held that the content moderation provisions were subject to
some form of heightened constitutional scrutiny and likely could not survive that review. Reasoning that
the state had no substantial interest in “leveling the playing field” for speech, the court found the law did
not further any substantial government interest. Neither did the state show that the burden on speech was
no greater than necessary, given how broadly the law restricted platforms’ editorial discretion.
A more lenient standard of review applied to the rest of the disclosure provisions, and the court upheld
most of those provisions. Specifically, the court applied a relaxed standard applicable to commercial
disclosure requirements. The court said that most of the transparency requirements likely permissibly
served an interest “in ensuring that users—consumers who engage in commercial transactions with
platforms by providing them with a user and data for advertising in exchange for access to a forum—are
fully informed about the terms of that transaction and aren’t misled about platforms’ content-moderation
policies.” The provision requiring platforms to provide notice and justification for all content moderation
actions, though, was deemed “unduly burdensome and likely to chill platforms’ protected speech.”
The Eleventh Circuit’s opinion therefore allowed portions of Florida’s law to go into effect, but otherwise
affirmed the trial court’s preliminary injunction preventing the law from taking effect. This judgment
stands in contrast to the Fifth Circuit’s recent ruling on Texas’s somewhat similar social media law.
Texas
HB 20
Texas enacted H.B. 20 on September 9, 2021, months after Florida’s law was adopted—and preliminarily
enjoined by a trial court. H.B. 20 defines “social media platform” more narrowly than Florida’s law,
applying only to a “website or application that is open to the public, allows a user to create an account,
and enables users to communicate with other users for the primary purpose of posting information,

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comments, messages, or images.” Thus, unlike the Florida law, which broadly sweeps in a variety of
internet service providers, the Texas law focuses on sites with the primary purpose of enabling user
communication. H.B. 20 further applies only to platforms with “more than 50 million active users in the
United States in a calendar month,” which could still encompass a number of platforms beyond the
biggest social media companies such as Facebook and YouTube. The definition expressly excludes certain
services such as internet service providers, email, or certain news sites. (Some provisions of the law,
however, impose separate restrictions on email providers.)
Like the Florida law, the Texas law imposes both content moderation restrictions and disclosure
requirements on covered platforms. The Texas law prohibits social media platforms from “censor[ing]”
users or content based on viewpoint or the user’s geographic location in the state. However, the law says
it does not prevent a platform from censoring a few specific types of content, including unlawful
expression or specific discriminatory threats of violence. The law also says social media platforms can
continue to censor content when “specifically authorized . . . by federal law,” a provision that one of the
bill’s authors said was intended to refer to a provision of the Communications Act’s Section 230 that
grants sites federal immunity for removing certain “objectionable” content.
The law also imposes procedural restrictions on platforms, requiring them to “provide an easily
accessible” system for users to submit complaints about illegal content or content removals. Platforms
generally must act on these complaints within 48 hours. Further, platforms must notify users when the
platforms remove their content and provide users with the opportunity to appeal the decision, under
statutorily specified procedures.
The law additionally requires platforms to “disclose accurate information” about their content and data
management and “business practices,” including publishing an acceptable use policy explaining their
content moderation policies. It further requires the biannual publication of a transparency report with
information about takedowns of illegal or policy-violating content.
NetChoice v. Paxton
On December 1, 2021, a federal trial court ruled H.B. 20 likely unconstitutional and entered a preliminary
injunction preventing the state from enforcing the restrictions on social media platforms discussed above.
In brief, the court concluded that the covered platforms “have a First Amendment right to moderate
content disseminated on their platforms.” The court stressed that Texas lawmakers seemed to premise
their bill on the idea that these platforms exercise editorial discretion in order to “skew their platforms
ideologically.” In the court’s view, the law’s censorship prohibition and other “constraints on how social
media platforms disseminate content” violated the First Amendment by impermissibly compelling the
platforms to “alter and distort” their expressive activity. In addition, the court held that the operational and
disclosure requirements were “inordinately burdensome given the unfathomably large numbers of posts
on these sites and apps.”
This decision was appealed to the Fifth Circuit, which heard oral argument on the case on May 9, 2022. In
its briefing and at oral argument, the state largely argued that the platforms should be viewed as common
carriers and can be subject to legal requirements to serve all comers. The trade group challenging the law
continued to claim that it was unconstitutional, describing it as “an extraordinary assertion of government
power to substitute the government’s editorial preferences for those of private publishers.”
Two days after the oral arguments, the Fifth Circuit entered a stay of the preliminary injunction pending
appeal, allowing the Texas law to go into effect. The Fifth Circuit’s order did not explain the reasoning for
granting a stay, nor did it explicitly state the panel’s view of the law’s constitutionality. Nonetheless, a
federal appellate court generally may not enter such a stay unless it believes “the stay applicant has made
a strong showing that he is likely to succeed on the merits,” suggesting the Fifth Circuit believes the state
is likely to prevail.

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The parties challenging H.B. 20 have filed a request for emergency relief in the Supreme Court, asking
the Court to vacate the Fifth Circuit’s stay. Emergency matters on the Supreme Court’s non-merits docket
are often handled on an expedited basis. Without further action from the Supreme Court, though, the
Texas law will likely remain in effect until the Fifth Circuit publishes an opinion on the merits.
Considerations for Congress
While the Florida and Texas laws are not identical and the Fifth Circuit has not yet issued a full opinion,
these two rulings could reflect different views of social media platforms’ First Amendment rights. Thus
far, most court rulings on online platforms’ constitutional rights to freely moderate content have come
from trial courts, so these appellate decisions could have special significance in this evolving area. In
particular, if courts find that online platforms are exercising protected editorial discretion when they
moderate user-generated content, that will limit the government’s ability to regulate platforms’ content
moderation decisions. Decisions weighing in on this constitutional question could be significant not only
for Florida and Texas, but also other states who have indicated that they are considering similar
legislation. The apparent circuit split, along with the various trial court rulings on related issues, creates
some ambiguity for states seeking to assess possible legal challenges. It also means that a state’s ability to
enact similar laws may depend on the federal judicial circuit in which it is located.
The scope of online platforms’ First Amendment rights is also relevant to Congress as it considers bills
proposing to regulate online content moderation. Some federal proposals would, in ways somewhat
distinct from the Texas law, seek to penalize online services that restrict content based on viewpoint, or
would otherwise require platforms to host lawful content. Other federal bills would institute transparency
requirements with some similarities to certain portions of the Florida and Texas laws. Further decisions on
the constitutionality of state laws may suggest how courts are likely to review federal laws regulating
social media platforms.

Author Information

Valerie C. Brannon

Legislative Attorney




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