Circuits Split Over States’ Right to Regulate Social Media Platforms

August 22, 2022 | Privacy, Data & Cyber Law

More and more officials in states across the country are seeking to assert authority over the ways that social media companies interact with their users, and how they handle posted content. The companies typically have objected to those restraints by asserting, among other things, a First Amendment right to be free of government control. As one can imagine, in a number of instances litigation has followed. The principal decisions that have come down so far have yielded a split between the U.S. Courts of Appeals for the Fifth and Eleventh Circuits, indicating that these disputes will ultimately need to be settled by the U.S. Supreme Court.

The Florida Fight

In May 2021, Florida Governor Ron DeSantis signed S.B. 7072 into law, announcing his action in a press release indicating that he was intending “to Stop the Censorship of Floridians by Big Tech.” See S.B. 7072 states that social media platforms are important in preserving First Amendment protections for all Floridians and, comparing social media platforms to public utilities, argues that they should be “treated similarly to common carriers.” The law justifies that treatment because it says that social media platforms have “unfairly” treated Floridians and “[t]he state has a substantial interest in protecting its residents from inconsistent and unfair actions” by social media platforms. See

The principal provisions of S.B. 7072 can be divided into three categories: (1) content moderation restrictions; (2) disclosure obligations; and (3) a user data requirement.

There are a number of content moderation restrictions in S.B. 7072. Significantly, the law provides that social media platforms “may not willfully deplatform a candidate for office,” defining “deplatform” 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.”

Another content moderation section of the law states that social media platforms “may not apply or use post-prioritization or shadow banning algorithms for content and material posted by or about . . . a candidate.” S.B. 7072 defines “post prioritization” as the practice of arranging certain content in a more or less prominent position in a user’s feed or search results and “shadow banning” as any action to “limit or eliminate the exposure of a user or content or material posted by a user to other users of [a] . . . platform.”

Yet another content moderation provision in S.B. 7072 states that social media platforms may not “censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast.” The law defines “journalistic enterprise” broadly to include any entity doing business in Florida that publishes in excess of 100,000 words online and has at least 50,000 paid subscribers or 100,000 monthly users; publishes 100 hours of audio or video online and has at least 100 million annual viewers; operates a cable channel that provides more than 40 hours of content per week to more than 100,000 cable subscribers; or operates under a broadcast license from the Federal Communications Commission. The law defines “censor” to include actions taken to “delete,” “edit,” or “inhibit the publication of” content as well as any effort to “post an addendum to any content or material.” This provision excepts “obscene” content from its prohibition.

Among other content moderation provisions, the law requires that social media platforms “apply censorship, deplatforming, and shadow banning standards in a consistent manner among . . . users” and prohibits platforms from making changes to “user rules, terms, and agreements . . . more than once every 30 days.”

The disclosure obligations that the Florida law imposes on social media platforms include requiring that they provide a “thorough rationale” for each content moderation decision they make, that they publish the standards they use or have used “for determining how to censor [and] deplatform,” and that they inform users “about any changes to” their “rules, terms, and agreements before implementing the changes.”

The user data requirement in the Florida law provides that a social media platform must allow a deplatformed user to “access or retrieve all of the user’s information, content, material, and data for at least 60 days” after the user receives notice of deplatforming.

Two trade associations that represent internet and social media companies, NetChoice, LLC, and the Computer & Communications Industry Association (CCIA), went to court seeking to enjoin key provisions of the law, arguing that they violate social media companies’ right to free speech under the First Amendment. The U.S. District Court for the Northern District of Florida issued a preliminary injunction in favor of the plaintiffs, holding that S.B. 7072’s provisions implicate the First Amendment because they restrict social media platforms’ constitutionally protected exercise of “editorial judgment.”

Florida appealed to the Eleventh Circuit. The state argued that S.B. 7072 did not even implicate, let alone violate, the First Amendment because the platforms are not engaged in protected speech. Rather, Florida asserted that the law merely requires platforms to “host” third parties’ speech. Alternatively, Florida asserted that S.B. 7072 does not trigger First Amendment scrutiny because it reflects the state’s permissible decision to treat social media platforms like “common carriers.”

The Eleventh Circuit’s Decision

On May 23, 2022, the Eleventh Circuit, in NetChoice, LLC v. Attorney General, State of Florida, 34 F.4th 1196 (11th Cir. 2022), substantially affirmed the district court’s issuance of the preliminary injunction.

In its 67-page decision, the Eleventh Circuit reasoned that social media platforms are “private companies with First Amendment rights,” and when they “disclos[e],” “publish[],” or “disseminat[e]” information, they engage in “speech within the meaning of the First Amendment.” Therefore, the circuit court continued, when a platform selectively removes what it perceives to be incendiary political rhetoric, pornographic content, or public health misinformation, “it conveys a message” and engages in “speech” within the meaning of the First Amendment. Accordingly, the circuit court declared, laws that restrict social media platforms’ ability to speak through content moderation “trigger First Amendment scrutiny.”

After rejecting Florida’s contention that social media platforms are common carriers subject to state regulation, the Eleventh Circuit concluded that it was substantially likely that S.B. 7072’s content moderation restrictions and its requirement that platforms provide a thorough rationale for every content moderation action could not withstand scrutiny under the First Amendment and, therefore, that they violate the First Amendment.

The Texas Law

Texas Governor Greg Abbott signed HB 20 into law on September 9, 2021. It prohibits large social media platforms from “censor[ing]” a user based on the user’s “viewpoint.”

Specifically, HB 20 makes it unlawful for social media platforms to “censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: (1) the viewpoint of the user or another person; (2) the viewpoint represented in the user’s expression; or (3) a user’s geographic location in this state or any part of this state.” Two exceptions permit social media platforms to moderate certain sexual content and content that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.”

HB 20 also requires that social media platforms disclose certain information about their business practices, including an “acceptable use policy” and “a biannual transparency report.” See

NetChoice and CCIA challenged HB 20 in court, contending that the Texas law violates the First Amendment and seeking a preliminary injunction.

On December 1, 2021, the day before HB 20 was to take effect, the U.S. District Court for the Western District of Texas ruled that social media platforms have a First Amendment right to moderate content disseminated on their platforms; that social media platforms are not common carriers; and that HB 20 compels social media platforms to disseminate objectionable content and impermissibly restricts their editorial discretion. Accordingly, the district court ruled, HB 20’s prohibitions on “censorship” and constraints on how social media platforms disseminate content violate the First Amendment. The district court granted the plaintiffs’ motion for a preliminary injunction. NetChoice, LLC v. Paxton, 573 F. Supp. 3d 1092 (W.D. Tex. 2021).

Texas appealed to the Fifth Circuit. On May 11, 2022, after briefing and oral argument, a Fifth Circuit panel issued a one sentence per curiam opinion that stated, “IT IS ORDERED that appellant’s opposed motion to stay preliminary injunction pending appeal is GRANTED.” A footnote indicated that the panel was not unanimous, but the circuit court’s decision permitted HB 20 to go into effect.

NetChoice and CCIA asked the U.S. Supreme Court to vacate the Fifth Circuit’s order staying the district court’s preliminary injunction. On May 31, 2022, in a two sentence opinion, the Court granted their application and vacated the Fifth Circuit’s order, effectively granting a temporary reprieve for social media companies. NetChoice, LLC v. Paxton, 142 S. Ct. 1715 (May 31, 2022).

Justice Alito issued a dissent, joined by Justices Thomas and Gorsuch. Justice Alito reasoned that HB 20 “is novel, as are applicants’ business models.” He added that it “is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

Justice Alito added that he has “not formed a definitive view on the novel legal questions that arise from Texas’s decision to address the ‘changing social and economic’ conditions it perceives,” but he concluded that he “would not disturb the Court of Appeals’ informed judgment about applicants’ entitlement to a stay.”


Challenges to the Florida and Texas laws – and to similar laws that may be enacted elsewhere in the country – undoubtedly are destined to be finally resolved by the Supreme Court. Whether Justice Alito’s suggestion that existing case law may not be sufficient to resolve disputes over government efforts to regulate social media companies proves correct remains to be seen. A great deal hangs in the balance while we all await the Supreme Court’s guidance.

Reprinted with permission from the August 16, 2022, issue of the New York Law Journal©, ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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