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`
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`[PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`
`
`
`
`____________________
`
`No. 21-12355
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`____________________
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`
`NETCHOICE, LLC,
`d.b.a. NetChoice,
`COMPUTER & COMMUNICATIONS INDUSTRY
`ASSOCIATION,
`d.b.a. CCIA,
`
` Plaintiffs-Appellees,
`
`versus
`ATTORNEY GENERAL, STATE OF FLORIDA,
`in their official capacity,
`JONI ALEXIS POITIER,
`in her official capacity as Commissioner of
`the Florida Elections Commission,
`JASON TODD ALLEN,
`in his official capacity as Commissioner of
`
`
`
`
`
`[PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
`
`
`
`
`
`____________________
`
`No. 21-12355
`
`____________________
`
`
`NETCHOICE, LLC,
`d.b.a. NetChoice,
`COMPUTER & COMMUNICATIONS INDUSTRY
`ASSOCIATION,
`d.b.a. CCIA,
`
` Plaintiffs-Appellees,
`
`versus
`ATTORNEY GENERAL, STATE OF FLORIDA,
`in their official capacity,
`JONI ALEXIS POITIER,
`in her official capacity as Commissioner of
`the Florida Elections Commission,
`JASON TODD ALLEN,
`in his official capacity as Commissioner of
`
`
`
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`Opinion of the Court
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`the Florida Elections Commission,
`JOHN MARTIN HAYES,
`in his official capacity as Commissioner of
`the Florida Elections Commission,
`KYMBERLEE CURRY SMITH,
`in her official capacity as Commissioner of
`Florida Elections Commission,
`DEPUTY SECRETARY OF BUSINESS OPERATIONS
`OF THE FLORIDA DEPARTMENT OF MANAGEMENT
`SERVICES,
`in their official capacity,
`
`
` Defendants-Appellants.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Northern District of Florida
`D.C. Docket No. 4:21-cv-00220-RH-MAF
`____________________
`
`Before NEWSOM, TJOFLAT, and ED CARNES, Circuit Judges.
`NEWSOM, Circuit Judge:
`Not in their wildest dreams could anyone in the Founding
`generation have imagined Facebook, Twitter, YouTube, or Tik-
`Tok. But “whatever the challenges of applying the Constitution to
`
`
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`ever-advancing technology, the basic principles of freedom of
`speech and the press, like the First Amendment’s command, do not
`vary when a new and different medium for communication ap-
`pears.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011) (quo-
`tation marks omitted). One of those “basic principles”—indeed,
`the most basic of the basic—is that “[t]he Free Speech Clause of the
`First Amendment constrains governmental actors and protects pri-
`vate actors.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct.
`1921, 1926 (2019). Put simply, with minor exceptions, the govern-
`ment can’t tell a private person or entity what to say or how to say
`it.
`
`The question at the core of this appeal is whether the Face-
`books and Twitters of the world—indisputably “private actors”
`with First Amendment rights—are engaged in constitutionally pro-
`tected expressive activity when they moderate and curate the con-
`tent that they disseminate on their platforms. The State of Florida
`insists that they aren’t, and it has enacted a first-of-its-kind law to
`combat what some of its proponents perceive to be a concerted
`effort by “the ‘big tech’ oligarchs in Silicon Valley” to “silenc[e]”
`“conservative” speech in favor of a “radical leftist” agenda. To that
`end, the new law would, among other things, prohibit certain so-
`cial-media companies from “deplatforming” political candidates
`under any circumstances, prioritizing or deprioritizing any post or
`message “by or about” a candidate, and, more broadly, removing
`anything posted by a “journalistic enterprise” based on its content.
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`We hold that it is substantially likely that social-media com-
`panies—even the biggest ones—are “private actors” whose rights
`the First Amendment protects, Manhattan Cmty., 139 S. Ct. at
`1926, that their so-called “content-moderation” decisions consti-
`tute protected exercises of editorial judgment, and that the provi-
`sions of the new Florida law that restrict large platforms’ ability to
`engage in content moderation unconstitutionally burden that pre-
`rogative. We further conclude that it is substantially likely that one
`of the law’s particularly onerous disclosure provisions—which
`would require covered platforms to provide a “thorough rationale”
`for each and every content-moderation decision they make—vio-
`lates the First Amendment. Accordingly, we hold that the compa-
`nies are entitled to a preliminary injunction prohibiting enforce-
`ment of those provisions. Because we think it unlikely that the
`law’s remaining (and far less burdensome) disclosure provisions vi-
`olate the First Amendment, we hold that the companies are not
`entitled to preliminary injunctive relief with respect to them.
`
`I
`A
`We begin with a primer: This is a case about social-media
`platforms. (If you’re one of the millions of Americans who regu-
`larly use social media or can’t remember a time before social media
`existed, feel free to skip ahead.)
`
`At their core, social-media platforms collect speech created
`by third parties—typically in the form of written text, photos, and
`
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`videos, which we’ll collectively call “posts”—and then make that
`speech available to others, who might be either individuals who
`have chosen to “follow” the “post”-er or members of the general
`public. Social-media platforms include both massive websites with
`billions of users—like Facebook, Twitter, YouTube, and TikTok—
`and niche sites that cater to smaller audiences based on specific in-
`terests or affiliations—like Roblox (a child-oriented gaming net-
`work), ProAmericaOnly (a network for conservatives), and Vegan
`Forum (self-explanatory).
`
`Three important points about social-media platforms:
`First—and this would be too obvious to mention if it weren’t so
`often lost or obscured in political rhetoric—platforms are private
`enterprises, not governmental (or even quasi-governmental) enti-
`ties. No one has an obligation to contribute to or consume the
`content that the platforms make available. And correlatively, while
`the Constitution protects citizens from governmental efforts to re-
`strict their access to social media, see Packingham v. North Caro-
`lina, 137 S. Ct. 1730, 1737 (2017), no one has a vested right to force
`a platform to allow her to contribute to or consume social-media
`content.
`
`Second, a social-media platform is different from traditional
`media outlets in that it doesn’t create most of the original content
`on its site; the vast majority of “tweets” on Twitter and videos on
`YouTube, for instance, are created by individual users, not the
`companies that own and operate Twitter and YouTube. Even so,
`platforms do engage in some speech of their own: A platform, for
`
`
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`example, might publish terms of service or community standards
`specifying the type of content that it will (and won’t) allow on its
`site, add addenda or disclaimers to certain posts (say, warning of
`misinformation or mature content), or publish its own posts.
`Third, and relatedly, social-media platforms aren’t “dumb
`pipes”: They’re not just servers and hard drives storing infor-
`mation or hosting blogs that anyone can access, and they’re not
`internet service providers reflexively transmitting data from point
`A to point B. Rather, when a user visits Facebook or Twitter, for
`instance, she sees a curated and edited compilation of content from
`the people and organizations that she follows. If she follows 1,000
`people and 100 organizations on a particular platform, for instance,
`her “feed”—for better or worse—won’t just consist of every single
`post created by every single one of those people and organizations
`arranged in reverse-chronological order. Rather, the platform will
`have exercised editorial judgment in two key ways: First, the plat-
`form will have removed posts that violate its terms of service or
`community standards—for instance, those containing hate speech,
`pornography, or violent content. See, e.g., Doc. 26-1 at 3–6; Face-
`book Community Standards, Meta,
`https://transpar-
`ency.fb.com/policies/community-standards (last accessed May 15,
`2022). Second, it will have arranged available content by choosing
`how to prioritize and display posts—effectively selecting which us-
`ers’ speech the viewer will see, and in what order, during any given
`visit to the site. See Doc. 26-1 at 3.
`
`
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`Accordingly, a social-media platform serves as an intermedi-
`ary between users who have chosen to partake of the service the
`platform provides and thereby participate in the community it has
`created. In that way, the platform creates a virtual space in which
`every user—private individuals, politicians, news organizations,
`corporations, and advocacy groups—can be both speaker and lis-
`tener. In playing this role, the platforms invest significant time and
`resources into editing and organizing—the best word, we think, is
`curating—users’ posts into collections of content that they then dis-
`seminate to others. By engaging in this content moderation, the
`platforms develop particular market niches, foster different sorts of
`online communities, and promote various values and viewpoints.
`B
`The State of Florida enacted S.B. 7072—in the words of the
`Act’s sponsor, as quoted in Governor DeSantis’s signing state-
`ment—to combat the “biased silencing” of “our freedom of speech
`as conservatives . . . by the ‘big tech’ oligarchs in Silicon Valley.”
`News Release: Governor Ron DeSantis Signs Bill to Stop the Cen-
`sorship of Floridians by Big Tech (May 24, 2021).1 The bill, the
`Governor explained, was passed to take “action to ensure that ‘We
`the People’—real Floridians across the Sunshine State—are guar-
`anteed protection against the Silicon Valley elites” and to check the
`“Big Tech censors” that “discriminate in favor of the dominant
`
`
`1 See https://www.flgov.com/2021/05/24/governor-ron-desantis-signs-bill-
`to-stop-the-censorship-of-floridians-by-big-tech.
`
`
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`Silicon Valley ideology.” Id. By signing the bill, the Governor
`sought to “fight[] against [the] big tech oligarchs that contrive, ma-
`nipulate, and censor if you voice views that run contrary to their
`radical leftist narrative.” Id.
`S.B. 7072’s enacted findings are more measured. They assert
`that private social-media platforms are important “in preserving
`first amendment protections for all Floridians” and, comparing
`platforms to “public utilities,” argue that they should be “treated
`similarly to common carriers.” S.B. 7072 § 1(5), (6). That, the Act
`says, is because social-media platforms “have unfairly censored,
`shadow banned, deplatformed, and applied post-prioritization al-
`gorithms to Floridians” and because “[t]he state has a substantial
`interest in protecting its residents from inconsistent and unfair ac-
`tions” by the platforms. Id. § 1(9), (10).
`To these ends, S.B. 7072 contains several new statutory pro-
`visions that apply to “social media platforms.” The term “social
`media platform” is defined using size and revenue thresholds that
`appear to target the “big tech oligarchs” about whose “narrative”
`and “ideology” the bill’s sponsor and Governor DeSantis had com-
`plained. Even so, the definition’s broad conception of what a “so-
`cial media platform” does may well sweep in other popular web-
`sites, like the crowdsourced reference tool Wikipedia and virtual
`handmade craft-market Etsy:
`[A]ny information service, system, Internet search en-
`gine, or access software provider that:
`
`
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`1. Provides or enables computer access by multiple
`users to a computer server, including an Internet plat-
`form or a social media site;
`2. Operates as a sole proprietorship, partnership,
`limited liability company, corporation, association, or
`other legal entity;
`3. Does business in the state; and
`4. Satisfies at least one of the following thresholds:
`a. Has annual gross revenues in excess of $100
`million . . .
`b. Has at least 100 million monthly individual
`platform participants globally.
`Fla. Stat. § 501.2041(1)(g). As originally enacted, the law’s defini-
`tion of “social media platform” expressly excluded any platform
`“operated by a company that owns and operates a theme park or
`entertainment complex.” Id. But after the onset of this litigation—
`and after Disney executives made public comments critical of an-
`other recently enacted Florida law—the State repealed S.B. 7072’s
`theme-park-company exemption. See S.B. 6-C (2022).
`
`The relevant provisions of S.B. 7072—which are codified at
`Fla. Stat. §§ 106.072 and 501.20412—can be divided into three cate-
`gories: (1) content-moderation restrictions; (2) disclosure obliga-
`tions; and (3) a user-data requirement.
`
`
`2 While S.B. 7072 also enacted antitrust-related provisions, only §§ 106.072 and
`501.2041 are at issue in this appeal.
`
`
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`Content-Moderation Restrictions
`• Candidate deplatforming: A social-media platform “may
`not willfully deplatform a candidate for office.” Fla. Stat.
`§ 106.072(2). The term “deplatform” is defined to mean “the
`action or practice by a social media platform to permanently
`delete or ban a user or to temporarily delete or ban a user
`from the social media platform for more than 14 days.” Id.
`§ 501.2041(1)(c).
`• Posts by or about candidates: “A social media platform may
`not apply or use post-prioritization or shadow banning algo-
`rithms for content and material posted by or about . . . a can-
`didate.” Id. § 501.2041(2)(h). “Post prioritization” refers to
`the practice of arranging certain content in a more or less
`prominent position in a user’s feed or search results. Id.
`§ 501.2041(1)(e).3 “Shadow banning” refers to any action to
`“limit or eliminate the exposure of a user or content or ma-
`terial posted by a user to other users of [a] . . . platform.” Id.
`§ 501.2041(1)(f).
`• “Journalistic enterprises”: A social-media platform may not
`“censor, deplatform, or shadow ban a journalistic enterprise
`based on the content of its publication or broadcast.” Id.
`§ 501.2041(2)(j). The term “journalistic enterprise” is de-
`fined broadly to include any entity doing business in Florida
`
`
`3 For purposes of this appeal, the State does not defend the Act’s post-prioriti-
`zation provisions.
`
`
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`that either (1) publishes in excess of 100,000 words online
`and has at least 50,000 paid subscribers or 100,000 monthly
`users, (2) publishes 100 hours of audio or video online and
`has at least 100 million annual viewers, (3) operates a cable
`channel that provides more than 40 hours of content per
`week to more than 100,000 cable subscribers, or (4) operates
`under an FCC broadcast license. Id. § 501.2041(1)(d). The
`term “censor” is also defined broadly to include not only ac-
`tions taken to “delete,” “edit,” or “inhibit the publication of”
`content, but also any effort to “post an addendum to any
`content or material.” Id. § 501.2041(1)(b). The only excep-
`tion to this provision’s prohibition is for “obscene” content.
`Id. § 501.2041(2)(j).
`• Consistency: A social-media platform must “apply censor-
`ship, deplatforming, and shadow banning standards in a con-
`sistent manner among its users on the platform.” Id.
`§ 501.2041(2)(b). The Act does not define the term “con-
`sistent.”
`• 30-day restriction: A platform may not make changes to its
`“user rules, terms, and agreements . . . more than once every
`30 days.” Id. § 501.2041(2)(c).
`• User opt-out: A platform must “categorize” its post-prioriti-
`zation and shadow-banning algorithms and allow users to
`opt out of them; for users who opt out, the platform must
`display material in “sequential or chronological” order. Id.
`
`
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`§ 501.2041(2)(f). The platform must offer users the oppor-
`tunity to opt out annually. Id. § 501.2041(2)(g).
`Disclosure Obligations
`• Standards: A social-media platform must “publish the stand-
`ards, including detailed definitions, it uses or has used for
`determining how to censor, deplatform, and shadow ban.”
`Id. § 501.2041(2)(a).
`• Rule changes: A platform must inform its users “about any
`changes to” its “rules, terms, and agreements before imple-
`menting the changes.” Id. § 501.2041(2)(c).
`• View counts: Upon request, a platform must provide a user
`with the number of others who viewed that user’s content
`or posts. Id. § 501.2041(2)(e).
`• Candidate free advertising: Platforms that “willfully pro-
`vide[] free advertising for a candidate must inform the can-
`didate of such in-kind contribution.” Id. § 106.072(4).
`• Explanations: Before a social-media platform deplatforms,
`censors, or shadow-bans any user, it must provide the user
`with a detailed notice. Id. § 501.2041(2)(d). In particular, the
`notice must be in writing and be delivered within 7 days, and
`must include both a “thorough rationale explaining the rea-
`son” for the “censor[ship]” and a “precise and thorough ex-
`planation of how the social media platform became aware”
`of the content that triggered its decision. Id. § 501.2041(3).
`(The notice requirement doesn’t apply “if the censored con-
`tent or material is obscene.” Id. § 501.2041(4).)
`
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`User-Data Requirement
`• Data access: A social-media platform must allow a deplat-
`formed user to “access or retrieve all of the user’s infor-
`mation, content, material, and data for at least 60 days” after
`Id.
`the user
`receives notice of deplatforming.
`
`§ 501.2041(2)(i).
`
`Enforcement of § 106.072—which contains the candidate-
`deplatforming provision—falls to the Florida Elections Commis-
`sion, which is empowered to impose fines of up to $250,000 per day
`for violations involving candidates for statewide office and $25,000
`per day for those involving candidates for other offices. Id.
`§ 106.072(3). Section 501.2041—which contains S.B. 7072’s remain-
`ing provisions—may be enforced either by state governmental ac-
`tors or through civil suits filed by private parties. Id. § 501.2041(5),
`(6). Private actions under this section can yield up to $100,000 in
`statutory damages per claim, actual damages, punitive damages,
`equitable relief, and, in some instances, attorneys’ fees. Id.
`§ 501.2041(6).
`
`C
`The plaintiffs here—NetChoice and the Computer & Com-
`munications Industry Association (together, “NetChoice”)—are
`trade associations that represent internet and social-media compa-
`nies like Facebook, Twitter, Google (which owns YouTube), and
`TikTok. They sued the Florida officials charged with enforcing
`S.B. 7072 under 42 U.S.C. § 1983. In particular, they sought to
`
`
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`enjoin enforcement of §§ 106.072 and 501.2041 on a number of
`grounds, including, as relevant here, that the law’s provisions
`(1) violate the social-media companies’ right to free speech under
`the First Amendment and (2) are preempted by federal law.
`The district court granted NetChoice’s motion and prelimi-
`narily enjoined enforcement of §§ 106.072 and 501.2041 in their en-
`tirety. The court held that the provisions that impose liability for
`platforms’ decisions to remove or deprioritize content are likely
`preempted by 47 U.S.C. § 230(c)(2), which states that “[n]o pro-
`vider or user of an interactive computer service shall be held liable
`on account of . . . any action voluntarily taken in good faith to re-
`strict access to or availability of material that the provider or user
`considers to be obscene, lewd, lascivious, filthy, excessively vio-
`lent, harassing, or otherwise objectionable, whether or not such
`material is constitutionally protected.”
`
`On NetChoice’s free-speech challenge, the district court
`held that the Act’s provisions implicated the First Amendment be-
`cause they restrict platforms’ constitutionally protected exercise of
`“editorial judgment.” The court then applied strict First Amend-
`ment scrutiny because it concluded that some of the Act’s provi-
`sions were content-based and, more broadly, because it found that
`the entire bill was motivated by the state’s viewpoint-based pur-
`pose to defend conservatives’ speech from perceived liberal “big
`tech” bias: “This viewpoint-based motivation, without more, sub-
`jects the legislation to strict scrutiny, root and branch.” Doc. 113
`at 23–26. The court held that the Act’s provisions “come nowhere
`
`
`
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`close” to surviving strict scrutiny because, it said, “leveling the
`playing field” for speech is not a legitimate state interest, the provi-
`sions aren’t narrowly tailored, and the State hadn’t even argued
`that the provisions could survive such scrutiny. Id. at 27. The court
`further noted that even if more permissive intermediate scrutiny
`applied, the provisions wouldn’t survive because they don’t meet
`the narrow-tailoring requirement and instead “seem designed not
`to achieve any governmental interest but to impose the maximum
`available burden on the social media platforms.” Id. at 28. The
`court concluded that the plaintiffs easily met the remaining re-
`quirements for a preliminary injunction.
`The State appealed. Before us, the State first argues that the
`plaintiffs are unlikely to succeed on their preemption challenge be-
`cause some applications of the Act are consistent with § 230. Sec-
`ond, and more importantly for our purposes, the State contends
`that S.B. 7072 doesn’t even implicate—let alone violate—the First
`Amendment because the platforms aren’t engaged in protected
`speech. Rather, the State asserts that the Act merely requires plat-
`forms to “host” third-parties’ speech, which, it says, they may con-
`stitutionally be compelled to do under two Supreme Court deci-
`sions—PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980),
`and Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,
`547 U.S. 47 (2006). Alternatively, the State says, the Act doesn’t
`trigger First Amendment scrutiny because it reflects the State’s per-
`missible decision to treat social-media platforms like “common car-
`riers.”
`
`
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`NetChoice responds that platforms’ content-moderation de-
`cisions—i.e., their decisions to remove or deprioritize posts or de-
`platform users, and thereby curate the material they disseminate—
`are “editorial judgments” that are protected by the First Amend-
`ment under longstanding Supreme Court precedent, including Mi-
`ami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Pacific
`Gas & Electric Co. v. Public Utilities Commission of California, 475
`U.S. 1 (1986), Turner Broadcasting Systems, Inc. v. FCC, 512 U.S.
`622 (1994), and Hurley v. Irish-American Gay, Lesbian & Bisexual
`Group of Boston, 515 U.S. 557 (1995). According to NetChoice,
`strict scrutiny applies to the entire law “several times over” because
`it is speaker-, content-, and viewpoint-based. Moreover, and in any
`event, NetChoice says, the law fails any form of heightened scru-
`tiny because there is no legitimate state interest in equalizing
`speech and because the law isn’t narrowly tailored. NetChoice
`briefly defends the district court’s preemption holding, but focuses
`on the First Amendment issues because they fully dispose of the
`case and because, it contends, a First Amendment violation is a
`quintessential irreparable injury for injunctive-relief purposes.
`D
`“We review the grant of a preliminary injunction for abuse
`
`of discretion, reviewing any underlying legal conclusions de novo
`and any findings of fact for clear error.” Gonzalez v. Governor of
`Ga., 978 F.3d 1266, 1270 (11th Cir. 2020). Ordinarily, “[a] district
`court may grant injunctive relief only if the moving party shows
`that: (1) it has a substantial likelihood of success on the merits;
`
`
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`(2) irreparable injury will be suffered unless the injunction issues;
`(3) the threatened injury to the movant outweighs whatever dam-
`age the proposed injunction may cause the opposing party; and
`(4) if issued, the injunction would not be adverse to the public in-
`terest.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en
`banc). Likelihood of success on the merits “is generally the most
`important” factor. Gonzalez, 978 F.3d at 1271 n.12 (quotation
`marks omitted).
`
`* * *
`
`We will train our attention on the question whether
`
`NetChoice has shown a substantial likelihood of success on the
`merits of its First Amendment challenge to Fla. Stat. §§ 106.072 and
`501.2041. Because we conclude that the Act’s content-moderation
`restrictions are substantially likely to violate the First Amendment,
`and because that conclusion fully disposes of the appeal, we
`needn’t reach the merits of the plaintiffs’ preemption challenge.4
`
`
`4 The only provisions that NetChoice challenges as preempted are, for reasons
`we’ll explain, also substantially likely to violate the First Amendment. Of
`course, federal courts should generally “avoid reaching constitutional ques-
`tions if there are other grounds upon which a case can be decided,” but that
`rule applies only when “a dispositive nonconstitutional ground is available.”
`Otto v. City of Boca Raton, 981 F.3d 854, 871 (11th Cir. 2020) (quotation marks
`and emphasis omitted). Here, whether or not the preemption ground is “dis-
`positive,” but cf. id., it isn’t “nonconstitutional” because federal preemption is
`rooted in the Supremacy Clause of Article VI. See La. Pub. Serv. Comm’n v.
`FCC, 476 U.S. 355, 368 (1986).
`
`
`
`USCA11 Case: 21-12355 Date Filed: 05/23/2022 Page: 18 of 67
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`18
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`Opinion of the Court
`
`21-12355
`
`In assessing whether the Act likely violates the First Amend-
`ment, we must initially consider whether it triggers First Amend-
`ment scrutiny in the first place—i.e., whether it regulates “speech”
`within the meaning of the Amendment at all. See Coral Ridge Min-
`istries Media, Inc. v. Amazon.com, Inc., 6 F.4th 1247, 1254 (11th
`Cir. 2021). In other words, we must determine whether social-me-
`dia platforms engage in First-Amendment-protected activity. If
`they do, we must then proceed to determine what level of scrutiny
`applies and whether the Act’s provisions survive that scrutiny. See
`Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11
`F.4th 1266, 1291 (11th Cir. 2021) (“FLFNB II”).
`For reasons we will explain in the balance of the opinion, we
`hold as follows: (1) S.B. 7072 triggers First Amendment scrutiny
`because it restricts social-media platforms’ exercise of editorial
`judgment and requires them to make certain disclosures; (2) strict
`scrutiny applies to some of the Act’s content-moderation re-
`strictions while intermediate scrutiny applies to others; (3) the
`Act’s disclosure provisions should be assessed under the standard
`articulated in Zauderer v. Office of Disciplinary Counsel, 471 U.S.
`626 (1985); (4) it is substantially likely that the Act’s content-mod-
`eration restrictions will not survive even intermediate scrutiny;
`(5) it is also substantially likely that the requirement that platforms
`provide a “thorough rationale” for each content-moderation deci-
`sion will not survive under Zauderer; (6) it is not substantially
`likely that the Act’s remaining disclosure provisions are unconsti-
`tutional; and (7) the preliminary-injunction factors favor enjoining
`
`
`
`USCA11 Case: 21-12355 Date Filed: 05/23/2022 Page: 19 of 67
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`Opinion of the Court
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`19
`
`the provisions of the Act that are substantially likely to be uncon-
`stitutional.
`
`II
`A
`Social-media platforms like Facebook, Twitter, YouTube,
`
`and TikTok are private companies with First Amendment rights,
`see First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 781–84 (1978),
`and when they (like other entities) “disclos[e],” “publish[],” or “dis-
`seminat[e]” information, they engage in “speech within the mean-
`ing of the First Amendment.” Sorrell v. IMS Health Inc., 564 U.S.
`552, 570 (2011) (quotation marks omitted). More particularly,
`when a platform removes or deprioritizes a user or post, it makes
`a judgment about whether and to what extent it will publish infor-
`mation 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. As the officials who
`sponsored and signed S.B. 7072 recognized when alleging that “Big
`Tech” companies harbor a “leftist” bias against “conservative” per-
`spectives, the companies that operate social-media platforms ex-
`press themselves (for better or worse) through their content-mod-
`eration decisions. When a platform selectively removes what it
`perceives to be incendiary political rhetoric, pornographic content,
`or public-health misinformation, it conveys a message and thereby
`engages in “speech” within the meaning of the First Amendment.
`
`
`
`USCA11 Case: 21-12355 Date Filed: 05/23/2022 Page: 20 of 67
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`20
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`Opinion of the Court
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`21-12355
`
`Laws that restrict platforms’ ability to speak through con-
`tent moderation therefore trigger First Amendment scrutiny. Two
`lines of precedent independently confirm this commonsense con-
`clusion: first, and most obviously, decisions protecting exercises of
`“editorial judgment”; and second, and separately, those protecting
`inherently expressive conduct.
`
`1
`We’ll begin with the editorial-judgment cases. The Su-
`preme Court has repeatedly held that a private entity’s choices
`about whether, to what extent, and in what manner it will dissem-
`inate speech—even speech created by others—constitute “editorial
`judgments” protected by the First Amendment.
`
`Miami Herald Publishing Co. v. Tornillo is the pathmarking
`case. There, the Court held that a newspaper’s decisions about
`what content to publish and its “treatment of public issues and pub-
`lic officials—whether fair or unfair—constitute the exercise of edi-
`torial control and judgment” that the First Amendment was de-
`signed to safeguard. 418 U.S. at 258. Florida had passed a statute
`requiring any paper that ran a piece critical of a political candidate
`to give the candidate equal space in its pages to reply. Id. at 243.
`Despite the contentions (1) that economic conditions had created
`“vast accumulations of unreviewable power in the modern media
`empires” and (2) that those conditions had resulted in “bias and ma-
`nipulative reportage” and massive barriers to entry, the Court con-
`cluded that the state’s attempt to compel the paper’s editors to
`
`
`
`USCA11 Case: 21-12355 Date Filed: 05/23/2022 Page: 21 of 67
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`Opinion of the Court
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`21
`
`“publish that which reason tells them should not be published is
`unconstitutional.” Id. at 250–51, 256 (quotation marks omitted).
`Florida’s “intrusion into the function of editors,” the Court held,
`was barred by the First Amendment. Id. at 258.
`
`The Court subsequently extended Miami Herald’s protec-
`tion of editorial judgment beyond newspapers. In Pacific Gas &
`Electric Co. v. Public Utilities Commission of California, the Court
`invalidated a state agency’s order that would have required a utility
`company to include in its billing envelopes the speech of a third
`party with which the company disagreed. 475 U.S. at 4, 20 (plural-
`ity op.). A plurality of the Court reasoned that the concerns under-
`lying Miami Herald applied to a utility company in the same way
`that they did to the institutional press. Id. at 11–12. The challenged
`order required the company “to use its property as a vehicle for
`spreading a message with which it disagree[d]” and therefore was
`subject to (and failed) strict First Amendment scrutiny. Id. at 17–
`21.
`
`So too, in Turner Broadcasting Systems, Inc. v.
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