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`IN THE UNITED STATES DISTRICT COURT FOR THE
`NORTHERN DISTRICT OF FLORIDA
`TALLAHASSEE DIVISION
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`Plaintiffs,
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`CASE NO. 4:21cv220-RH-MAF
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`
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`Defendants.
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`NETCHOICE, LLC et al.,
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`
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`v.
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`ASHLEY BROOKE MOODY et al.,
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`____________________________________/
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`
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`PRELIMINARY INJUNCTION
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`The State of Florida has adopted legislation that imposes sweeping
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`requirements on some but not all social-media providers. The legislation applies
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`only to large providers, not otherwise-identical but smaller providers, and
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`explicitly exempts providers under common ownership with any large Florida
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`theme park. The legislation compels providers to host speech that violates their
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`standards—speech they otherwise would not host—and forbids providers from
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`speaking as they otherwise would. The Governor’s signing statement and
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`numerous remarks of legislators show rather clearly that the legislation is
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`viewpoint-based. And parts contravene a federal statute. This order preliminarily
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`Case No. 4:21cv220-RH-MAF
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`Page 1 of 31
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`NORTHERN DISTRICT OF FLORIDA
`TALLAHASSEE DIVISION
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`
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`
`
`
`
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`CASE NO. 4:21cv220-RH-MAF
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`
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`Defendants.
`
`
`
`
`NETCHOICE, LLC et al.,
`
`
`
`v.
`
`ASHLEY BROOKE MOODY et al.,
`
`
`
`____________________________________/
`
`
`
`PRELIMINARY INJUNCTION
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`
`
`
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`The State of Florida has adopted legislation that imposes sweeping
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`requirements on some but not all social-media providers. The legislation applies
`
`only to large providers, not otherwise-identical but smaller providers, and
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`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
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`numerous remarks of legislators show rather clearly that the legislation is
`
`viewpoint-based. And parts contravene a federal statute. This order preliminarily
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`Case No. 4:21cv220-RH-MAF
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`enjoins enforcement of the parts of the legislation that are preempted or violate the
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`First Amendment.
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`I. The Lawsuit
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`
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`The plaintiffs are NetChoice, LLC and Computer & Communications
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`Industry Association. Both are trade associations whose members include social-
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`media providers subject to the legislation at issue. The plaintiffs assert the rights of
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`their affected members and have standing to do so. See, e.g., Hunt v. Wash. State
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`Apple Advert. Comm’n, 432 U.S. 333, 342-43 (1977).
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`
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`The defendants are the Attorney General of Florida, the members of the
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`Florida Elections Commission, and a Deputy Secretary of the Florida Department
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`of Management Services, all in their official capacities. The plaintiffs named the
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`Deputy Secretary because the Secretary’s position was vacant. Each of the
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`defendants has a role in enforcement of the provisions at issue and is a proper
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`defendant under Ex parte Young, 209 U.S. 123 (1908). For convenience, this order
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`sometimes refers to the defendants simply as “the State.”
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`
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`The complaint challenges Senate Bill 7072 as adopted by the 2021 Florida
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`Legislature (“the Act”). The Act created three new Florida statutes: § 106.072,
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`§ 287.137, and § 501.2041. The Act also included findings and a severability
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`clause. The Act is scheduled to take effect on July 1, 2021.
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`Count 1 of the complaint alleges the Act violates the First Amendment’s
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`
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`free-speech clause by interfering with the providers’ editorial judgment,
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`compelling speech, and prohibiting speech. Count 2 alleges the Act is vague in
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`violation of the Fourteenth Amendment. Count 3 alleges the Act violates the
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`Fourteenth Amendment’s equal protection clause by impermissibly discriminating
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`between providers that are or are not under common ownership with a large theme
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`park and by discriminating between providers that do or do not meet the Act’s size
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`requirements. Count 4 alleges the Act violates the Constitution’s dormant
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`commerce clause. Count 5 alleges the Act is preempted by 47 U.S.C. § 230(e)(3),
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`which, together with § 230(c)(2)(A), expressly prohibits imposition of liability on
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`an interactive computer service—this includes a social-media provider—for action
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`taken in good faith to restrict access to material the service finds objectionable.
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`
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`The plaintiffs have moved for a preliminary injunction. The motion has been
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`fully briefed and orally argued. Each side has submitted evidentiary material. The
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`motion is ripe for a decision.
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`II. Preliminary-Injunction Standard
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`As a prerequisite to a preliminary injunction, a plaintiff must establish a
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`substantial likelihood of success on the merits, that the plaintiff will suffer
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`irreparable injury if the injunction does not issue, that the threatened injury
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`outweighs whatever damage the proposed injunction may cause a defendant, and
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`that the injunction will not be adverse to the public interest. See, e.g., Charles H.
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`Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. 2005); Siegel v.
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`LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc).
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`This order addresses these prerequisites. The order addresses the merits
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`because likelihood of success on the merits is one of the prerequisites. With further
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`factual development, the analysis may change. Statements in this order about the
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`facts should be understood to relate only to the current record and the properly
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`considered material now available. Statements about the merits should be
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`understood only as statements about the likelihood of success as viewed at this
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`time.
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`III. The Statutes
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`A. Terminology
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`Before setting out the substance of the challenged statutes, a word is in order
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`about terminology. This order sometimes uses the term “social-media provider” to
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`refer to what most people on the street would probably understand that term to
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`mean—so YouTube, Facebook, Twitter, and dozens of smaller but similar
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`providers. The distinguishing characteristic is perhaps this: the primary function of
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`a social-media provider, or at least a primary function, is to receive content from
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`users and in turn to make the content available to other users. This is hardly a
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`precise definition, but none is needed; the term is used only for purposes of this
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`order. The term “social-media provider,” as used in this order, is not limited to
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`providers who are covered by the challenged statutes; the term is used instead to
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`apply to all such entities, including those smaller than the providers covered by the
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`statutes and those under common ownership with a large theme park.
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`
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`The challenged statutes, in contrast, use a slightly different term, “social
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`media platform.” See Fla. Stat. § 501.2041(1)(g) (emphasis added). There is no
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`significance to this order’s use of “provider” to describe all social-media entities
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`instead of “platform”—the word the statutes use to define the more limited set of
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`entities covered by the statutes. The order just needs different terms to refer to the
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`substantially different sets of entities.
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`
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`When this order uses “social media platform”—the statutory term—with or
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`without quotation marks, the reference ordinarily will be to an entity that both
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`meets the statutory definition and is a social-media provider as described above.
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`This order sometimes shortens the phrase to a single word: “platform.” At least on
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`its face, the statutory definition also applies to systems nobody would refer to as
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`social media; the definition says nothing about sharing content with other users.
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`The State says the definition should nonetheless be understood to be limited to
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`providers of social media within the common understanding—the State says this
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`comports with the statutory findings and the statutes’ obvious purpose. The State
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`may be correct. For present purposes it makes no difference.
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`B. Removing Candidates
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`A social-media provider sometimes bars a specific user from posting on the
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`provider’s site. This can happen, for example, when a user violates the provider’s
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`standards by engaging in fraud, spreading a foreign government’s disinformation,
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`inciting a riot or insurrection, providing false medical or public-health information,
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`or attempting to entice minors for sexual encounters.
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`
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`Newly enacted Florida Statutes § 106.072 prohibits a social media platform
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`from barring from its site any candidate for office—that is, any person who has
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`filed qualification papers and subscribed to the candidate’s oath. See Fla. Stat.
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`§ 106.011(3)(e). It is a low bar.
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`C. Posts “By or About” a Candidate
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`
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`A social-media provider sometimes takes down a user’s post, sometimes
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`restricts access to a post, and sometimes adds content to a post, saying, for
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`example, that a post has been determined not to be true or that accurate information
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`on the subject can be found at a specified location. And a social-media provider
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`sometimes rearranges content on its site, including, for example, by making more
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`readily available to a user content the provider believes the user will most wish to
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`see. Social-media providers also often elevate content—make it more readily
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`available to chosen users—when paid by advertisers to do so. Social-media
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`providers routinely use algorithms as part of these processes.
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`Florida Statutes § 501.2041(2)(h) prohibits a social media platform from
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`using “post-prioritization or shadow banning algorithms” for content “posted by or
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`about a user” who is known by the platform to be a candidate for office. The
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`statute does not define “about” a candidate. “Post-prioritization” means “action by
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`a social media platform to place, feature, or prioritize certain content or material
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`ahead of, below, or in a more or less prominent position than others in a newsfeed,
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`a feed, a view, or in search results.” Fla. Stat. § 501.2041(1)(e). But the term does
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`not apply to ads—to content the platform is paid to carry. Id. “Shadow ban” means
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`action by a social media platform “to limit or eliminate the exposure of a user or
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`content or material posted by a user to other users of the social media platform.”
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`Id. § 501.2041(1)(f).
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`At least by its terms, § 501.2041(2)(h) apparently prohibits a social media
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`platform from using an algorithm to put a candidate’s post in the proper feeds—to
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`put the post in the feed of a user who wishes to receive it or to exclude the
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`candidate’s post from the feed of a user who does not wish to receive it. Including
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`a post in the feed of a user who wishes to receive it places the post ahead of and in
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`a more prominent position that the many posts the user will not receive at all.
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`Excluding a post from the feed of a user who does not wish to receive it will
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`eliminate the user’s exposure to the post.
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`In any event, the statute does not explain how, if the platform cannot use an
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`algorithm “for content” by or about a candidate, the platform can know, before it
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`has violated the statute by using an algorithm, whether a post is by or about a
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`candidate.
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`The statute has a paid-content exception to the post-prioritization ban: post-
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`prioritization of “certain content or material” from or about a candidate based on
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`payments from the candidate or a third party is not a violation. The statute does not
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`specify what “certain” refers to—if it just means all such paid content, the word
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`“certain” is superfluous. But the whole paid-content exception may be superfluous
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`anyway; the definition of post-prioritization has its own paid-content exception.
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`See id. § 501.2041(1)(e).
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`D. Posts by a “Journalistic Enterprise”
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`Florida Statutes § 501.2041(2)(j) prohibits a social media platform from
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`taking action to “censor, deplatform, or shadow ban” a “journalistic enterprise”
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`based on the content of its publication or broadcast. “Censor” is broadly defined to
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`include not just deleting content but adding content:
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`“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.
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`Fla. Stat. § 501.2041(1)(b). “Deplatform” means to ban a user permanently or for
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`longer than 14 days. Id. § 501.2041(1)(c). “Shadow ban” has the meaning set out
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`above. See id. § 501.2041(1)(f).
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`The statute defines “journalistic enterprise” in a manner that covers many
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`entities that are engaged in journalism but many that are not; any retailer who does
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`business in Florida, has a website of substantial size, and fills 100,000 online
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`orders per month apparently qualifies. A small newspaper, in contrast—one with
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`fewer than 50,000 paid subscribers and fewer than 100,000 active monthly users—
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`does not qualify, no matter how high its journalistic standards. The definition
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`provides:
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`“Journalistic enterprise” means an entity doing business in
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`Florida that:
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`1. Publishes in excess of 100,000 words available online with at
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`least 50,000 paid subscribers or 100,000 monthly active users;
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`2. Publishes 100 hours of audio or video available online with
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`at least 100 million viewers annually;
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`3. Operates a cable channel that provides more than 40 hours of
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`content per week to more than 100,000 cable television
`subscribers; or
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`4. Operates under a broadcast license issued by the Federal
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`Communications Commission.
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`Fla. Stat. § 501.2041(1)(d).
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`The restrictions on a platform’s treatment of posts by journalistic enterprises
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`have two exceptions: they do not apply to obscenity or paid content.
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`E. Opting Out of Post-Prioritization and Shadow Banning
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`Florida Statutes § 501.2041(2)(f) requires a social media platform to
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`“[c]ategorize” algorithms used for post-prioritization and shadow banning and to
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`allow a “user” to “opt out of post-prioritization and shadow banning algorithm
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`categories to allow sequential or chronological posts and content.” On its face, this
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`allows a user who posts content to insist it be shown to other users in chronological
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`order—not in the order the recipient has otherwise specified or the order that,
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`based on the recipient’s profile and history, the social media platform believes
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`would be most preferred by or useful to the recipient. It is not clear how a social
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`media platform would display content posted by multiple users who all opt out—a
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`wild west of content on which the platform would be prohibited from using an
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`algorithm.
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`The State says, though, that “user” in § 501.2041(2)(f) means only a
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`recipient of information, not a person who posts information. But “user” is
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`explicitly defined in the statute to mean a person who resides or is domiciled in
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`Florida and “has an account on a social media platform, regardless of whether the
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`person posts or has posted content or material to the social media platform.” Id.
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`§ 501.2041(1)(h). Those who post content have accounts, no less than those who
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`receive content. And “user” is consistently used in other provisions to include
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`those who post content, not just recipients. See, e.g., id. § 501.2041(2)(d)
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`(prohibiting a social media platform from censoring or shadow banning “a user’s
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`content” or deplatforming “a user” without meeting specific conditions); id.
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`§ 501.2041(2)(e) (allowing “a user” to request the number of participants “who
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`were provided or shown the user’s content or posts”) (emphasis added); id.
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`§ 501.2041(2)(h) (restricting treatment of content “posted by . . . a user”)
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`(emphasis added); see also id. § 501.2041(2)(b), (c), (g) & (i).
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`F. Consistent Application of Standards
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`
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`Florida Statutes § 501.2041(2)(a) requires a social media platform to
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`“publish the standards, including detailed definitions, it uses or has used for
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`determining how to censor, deplatform, and shadow ban.” And § 501.2041(2)(b)
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`requires a social media platform to “apply censorship, deplatforming, and shadow
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`banning standards in a consistent manner among its users on the platform.” The
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`State says “standards,” in § 501.2041(2)(b), means the platform’s own standards,
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`as published under § 501.2041(2)(a). That is probably correct.
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`
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`The statute does not define “consistent manner.” And the statute does not
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`address what a social media platform should do when the statute itself prohibits
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`consistent application of the platform’s standards—for example, when a candidate
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`engages in conduct that would appropriately lead to deplatforming any other
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`person, or when content “by or about” a candidate, if by or about anyone else,
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`would be post-prioritized, or when a “journalistic enterprise” posts content that
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`would otherwise be censored.
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`G. Changing the Standards
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`Florida Statutes § 501.2041(2)(c) prohibits a social media platform from
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`changing its “user rules, terms, and agreements”—this apparently includes the
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`standards published under § 501.2041(2)(a)—more often than once every 30 days.
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`The provision requires the social media platform to inform each user about any
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`changes before they take effect.
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`H. Information
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`
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`Florida Statutes § 501.2041(2) includes additional provisions requiring
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`social media platforms to provide information to users.
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`Under § 501.2042(2)(d), a platform must give notice to a user who is
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`deplatformed or who posts content that is censored or shadow banned. Under
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`§ 501.2041(2)(i), the platform must allow a deplatformed user access to the user’s
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`content for 60 days after the notice. The notice for censored content must be
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`especially detailed: it must include a “thorough rationale explaining the reason that
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`the social media platform censored the user,” § 501.2041(3)(c), and a “precise and
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`thorough explanation of how the social media platform became aware of the
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`censored content or material, including a thorough explanation of the algorithms
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`used, if any, to identify or flag the user’s content or material as objectionable.” Id.
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`§ 501.2041(3)(d). The notice need not be given, however, for censored content that
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`is obscene. Id. § 501.2041(4).
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`Under § 501.2041(2)(e), a platform must, on request, tell a user how many
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`other participants were shown the user’s posts or content.
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`Under § 501.2041(2)(g), a platform must provide users annual notice of
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`algorithms used for post-prioritization and shadow banning and of their right to opt
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`out of the use of those algorithms.
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`I. Antitrust
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`
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`Florida Statutes § 287.137 allows the State to debar from public contracting
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`a social media platform that has committed, or sometimes just been accused of, an
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`antitrust violation. The section raises issues under both state and federal law, but it
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`poses no threat of immediate, irreparable harm to social media platforms. The
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`statute is not further addressed in, or enjoined by, this order.
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`IV. Likelihood of Success on the Merits
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`A. 47 U.S.C. § 230
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`
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`In Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710, at
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`*3–4 (N.Y. Sup. Ct. May 24, 1995), an anonymous user posted allegedly
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`defamatory content on an electronic bulletin board—an earlier version of what
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`today might be called social media. The court said that if the provider of such a
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`bulletin board did not undertake to review posted content—much as a librarian
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`does not undertake to review all the books in a library—the provider would not be
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`deemed the publisher of a defamatory post, absent sufficient actual knowledge of
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`the defamatory nature of the content at issue. On the facts of that case, though, the
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`provider undertook to screen the posted content—to maintain a “family oriented”
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`site. The court held this subjected the provider to liability as a publisher of the
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`content.
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`At least partly in response to that decision, which was deemed a threat to
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`development of the internet, Congress enacted 47 U.S.C. § 230. Congress sought
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`“to encourage service providers to self-regulate the dissemination of offensive
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`material over their services,” Zeran v. America Online, Inc., 129 F.3d 327, 331
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`(4th Cir. 1997), and to allow “computer service providers to establish standards of
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`decency without risking liability for doing so,” Domen v. Vimeo, Inc., 991 F.3d 66,
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`73 (2d Cir. 2021).
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`Under § 230, a provider of interactive computer services—this includes, as
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`things have evolved, a social-media provider—cannot be “held liable” for any
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`action “taken in good faith to restrict access to or availability of material that the
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`provider . . . considers to be obscene, lewd, lascivious, filthy, excessively violent,
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`harassing, or otherwise objectionable.” Id. § 230(c)(2). The statute says it does not
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`prevent a state from enforcing any consistent state law—the federal statute thus
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`does not preempt the field—but the statute does expressly preempt inconsistent
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`state laws: “No cause of action may be brought and no liability may be imposed
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`under any State or local law that is inconsistent with this section.” Id. § 230(e)(3).
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`Florida Statutes § 106.072 prohibits a social media platform from
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`deplatforming a candidate for office and imposes substantial fines: $250,000 per
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`day for a statewide office and $25,000 per day for any other office. But
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`deplatforming a candidate restricts access to material the platform plainly
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`considers objectionable within the meaning of 47 U.S.C. § 230(c)(2). If this is done
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`in good faith—as can happen—the Florida provision imposing daily fines is
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`preempted by § 230(e)(3). Good faith, for this purpose, is determined by federal
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`law, not state law. Removing a candidate from a platform based on otherwise-
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`legitimate, generally applicable standards—those applicable to individuals who are
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`not candidates—easily meets the good-faith requirement. Indeed, even a mistaken
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`application of standards may occur in good faith.
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`The federal statute also preempts the parts of Florida Statutes § 501.2041
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`that purport to impose liability for other decisions to remove or restrict access to
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`content. See Fla. Stat. § 501.2041(6) (creating a private right of action for damages
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`for violations of § 501.2041(2)(b) and (2)(d)1; id. § 501.2041(2)(b) (requiring a
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`social media platform to apply censorship, deplatforming, and shadow banning
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`standards in a consistent manner); id. § 501.2041(2)(d)1 (prohibiting a social
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`media platform from deplatforming a user or censoring or shadow banning a user’s
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`content without notifying the user); § 501.2041(2) (making any violation of that
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`subsection an unfair or deceptive act or practice within the meaning of
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`§ 501.204—and thus providing a private right of action for damages under
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`§ 501.211).
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`Claims based on alleged inconsistency of a platform’s removal of some
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`posts but not others are preempted. See Domen, 991 F.3d at 73.
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`In sum, the plaintiffs are likely to prevail on their challenge to the preempted
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`provisions—to those applicable to a social media platform’s restriction of access to
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`posted material. This does not, however, invalidate other provisions; for those, the
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`plaintiffs’ challenge must rise or fall with their constitutional claims.
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`B. First Amendment
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`1. Application to Social-Media Providers
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`
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`Although a primary function of social-media providers is to receive content
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`from users and in turn to make the content available to other users, the providers
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`routinely manage the content, allowing most, banning some, arranging content in
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`ways intended to make it more useful or desirable for users, sometimes adding the
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`providers’ own content. The plaintiffs call this curating or moderating the content
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`posted by users. In the absence curation, a social-media site would soon become
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`unacceptable—and indeed useless—to most users.
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`Case No. 4:21cv220-RH-MAF
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`Case 4:21-cv-00220-RH-MAF Document 113 Filed 06/30/21 Page 17 of 31
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`Page 17 of 31
`The plaintiffs say—correctly—that they use editorial judgment in making
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`
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`these decisions, much as more traditional media providers use editorial judgment
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`when choosing what to put in or leave out of a publication or broadcast. The
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`legislative record is chock full of statements by state officials supporting the view
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`that the providers do indeed use editorial judgment. A constant theme of
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`legislators, as well as the Governor and Lieutenant Governor, was that the
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`providers’ decisions on what to leave in or take out and how to present the
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`surviving material are ideologically biased and need to be reined in.
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`
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`Where social media fit in traditional First Amendment jurisprudence is not
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`settled. But three things are clear.
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`
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`First, the State has asserted it is on the side of the First Amendment; the
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`plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds
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`with accepted constitutional principles. The First Amendment says “Congress”
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`shall make no law abridging the freedom of speech or of the press. The Fourteenth
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`Amendment extended this prohibition to state and local governments. The First
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`Amendment does not restrict the rights of private entities not performing
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`traditional, exclusive public functions. See, e.g., Manhattan Cmty. Access Corp. v.
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`Halleck, 139 S. Ct. 1921, 1930 (2019). So whatever else may be said of the
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`providers’ actions, they do not violate the First Amendment.
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`Case No. 4:21cv220-RH-MAF
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`Case 4:21-cv-00220-RH-MAF Document 113 Filed 06/30/21 Page 18 of 31
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`Page 18 of 31
`Second, the First Amendment applies to speech over the internet, just as it
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`
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`applies to more traditional forms of communication. See, e.g., Reno v. ACLU, 521
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`U.S. 844, 870 (1997) (stating that prior cases, including those allowing greater
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`regulation of broadcast media, “provide no basis for qualifying the level of First
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`Amendment scrutiny that should be applied” to the internet).
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`
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`Third, state authority to regulate speech has not increased even if, as Florida
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`argued nearly 50 years ago and is again arguing today, one or a few powerful
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`entities have gained a monopoly in the marketplace of ideas, reducing the means
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`available to candidates or other individuals to communicate on matters of public
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`interest. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the
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`Court rejected just such an argument, striking down a Florida statute requiring a
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`newspaper to print a candidate’s reply to the newspaper’s unfavorable assertions.
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`A similar argument about undue concentration of power was commonplace as the
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`social-media restrictions now at issue advanced through the Florida Legislature.
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`But here, as in Tornillo, the argument is wrong on the law; the concentration of
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`market power among large social-media providers does not change the governing
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`First Amendment principles. And the argument is also wrong on the facts.
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`Whatever might be said of the largest providers’ monopolistic conduct, the internet
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`provides a greater opportunity for individuals to publish their views—and for
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`candidates to communicate directly with voters—than existed before the internet
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`Case No. 4:21cv220-RH-MAF
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`Case 4:21-cv-00220-RH-MAF Document 113 Filed 06/30/21 Page 19 of 31
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`Page 19 of 31
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`arrived. To its credit, the State does not assert that the dominance of large
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`providers renders the First Amendment inapplicable.
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`
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` That brings us to issues about First Amendment treatment of social-media
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`providers that are not so clearly settled. The plaintiffs say, in effect, that they
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`should be treated like any other speaker. The State says, in contrast, that social-
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`media providers are more like common carriers, transporting information from one
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`person to another much as a train transports people or products from one city to
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`another. The truth is in the middle.
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`
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`More generally, the plaintiffs draw support from three Supreme Court
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`decisions in which a state mandate for a private entity to allow unwanted speech
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`was held unconstitutional. On the State’s side are two Supreme Court decisions in
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`which a state or federal mandate for a private entity to allow unwanted speech was
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`held constitutional. Each side claims the cases on its side are dispositive, but this
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`case again falls in the middle. On balance, the decisions favor the plaintiffs.
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`
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`The plaintiffs push hardest of Tornillo, which, as set out above, held
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`unconstitutional the Florida statute requiring a newspaper to allow a candidate to
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`reply to the newspaper’s unfavorable statements. But newspapers, unlike social-
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`media providers, create or select all their content, including op-eds and letters to
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`the editor. Nothing makes it into the paper without substantive, discretionary
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`review, including for content and viewpoint; a newspaper is not a medium invisible
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`Case No. 4:21cv220-RH-MAF
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`Case 4:21-cv-00220-RH-MAF Document 113 Filed 06/30/21 Page 20 of 31
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`Page 20 of 31
`to the provider. Moreover, the viewpoint that would be expressed in a reply would
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`be at odds with the newspaper’s own viewpoint. Social media providers, in
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`contrast, routinely use algorithms to screen all content for unacceptable material
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`but usually not for viewpoint, and the overwhelming majority of the material never
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`gets reviewed except by algorithms. Something well north of 99% of the content
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`that makes it onto a social media site never gets reviewed further. The content on a
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`site is, to that extent, invisible to the provider.
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`
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`Similarly, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
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`Boston, 515 U. S. 557 (1995), a state court ruled that the state’s public-
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`accommodation law required an association conducting a private parade to allow
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`participation by an organization advocating gay rights. The parade association
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`asserted the gay-rights group’s participation would contravene what the association
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`was attempting to communicate. The Supreme Court held the association had a
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`First Amendment right to exclude the gay-rights group. Again, though, the parade
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`involved a limited number of participants, all undoubtedly approved in the
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`association’s discretionary judgment, including for viewpoint. This was not an
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`invisible-to-the-provider event.
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`
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`The third case on the plaintiffs’ side is Pacific Gas & Electric Co. v. Public
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`Utilities Commission of California, 475 U.S. 1 (1986). There a public utility
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`included in its billing envelopes its own viewpoint-laden newsletters. The state
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`Case 4:21-cv-00220-RH-MAF Document 113 Filed 06/30/21 Page 21 of 31
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`Page 21 of 31
`directed the utility to include in its billing envelopes four times per year a private
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`watchdog organization’s newsletters setting out a viewpoint with which the utility
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`disagreed. The Supreme Court held this unconstitutional. The utility undoubtedly
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`knew precisely what went into its billing envelopes and newsletters; as in Tornillo
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`and Hurley, this was not an invisible-to-the-provider forum.
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`
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`These three cases establish that a private party that creates or uses its
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`editorial judgment to select content for publication cannot be required by the
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`government to also publish other content in the same manner—in each of these
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`instances, content with which the party disagreed. But social-media providers do
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`not use editorial judgment in quite the same way. The content on their sites is, to a
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`large extent, invisible to the provider.
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`Even so, the activities of social media platforms that
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