With almost three billion users each month, Facebook is the most popular social media site in the world. 1 Most Popular Social Media Networks Worldwide as of January 2022, Ranked by Number of Monthly Users, Statista, https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users/ (last visited Sept. 6, 2022). Social media users depend on social media platforms for news and entertainment; companies rely on platforms to promote their businesses; and political candidates utilize platforms to campaign. 2 Edward W. McLaughlin, How to Regulate Online Platforms: Why Common Carrier Doctrine is Inappropriate to Regulate Social Networks and Alternate Approaches to Protect Rights, 90 Fordham L. Rev. 185 (2021). As social media platforms have risen in popularity in the past decade, they have also become a point of contention for both Democrats and Republicans. Recently, many conservatives have claimed that “Big Tech” censors their viewpoints over more liberal perspectives. 3 Id. In response to these claims, Florida and Texas Governors implemented laws to stop social media platforms from censoring users. 4 Shari Claire Lewis, Circuits Split Over States’ Right to Regulate Social Media Platforms; Internet Issues/Social Media, New York L. J. (Aug. 15, 2022, 10:00 AM), https://www.law.com/newyorklawjournal/2022/08/15/circuits-split-over-states-right-to-regulate-social-media-platforms/?slreturn=20220818171818. While the Eleventh Circuit ruled against the Florida law, the Texas law was upheld by the Fifth Circuit. 5 Id. The circuits disagree on whether censorship is considered speech. 6 Alan Z. Rozenshtein, The Fifth Circuit’s Social Media Decision: A Dangerous Example of First Amendment Absolutism, L. Fare (Sept. 20, 2022, 12:52 PM), https://www.lawfareblog.com/fifth-circuits-social-media-decision-dangerous-example-first-amendment-absolutism.
This article explores the recent circuit split. In Part II this Article discusses the Florida and Texas laws and how the Eleventh and Fifth Circuits ruled on the laws. Next, Part III examines the arguments both sides bring to the debate on how social media platforms should be characterized and how other circuits should rule on the issue. Finally, Part IV concludes with an argument that the Eleventh Circuit’s approach should be adopted by other courts.
In May 2021, Florida Governor Ron DeSantis signed Senate Bill 7072 (the “Florida Bill”) into law, which intended “to Stop the Censorship of Floridians by Big Tech.” 7 News Release, Ron DeSantis Staff, Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech (May 24, 2021), https://www.flgov.com/2021/05/24/governor-ron-desantis-signs-bill-to-stop-the-censorship-of-floridians-by-big-tech/. The three main provisions of the Florida Bill are content-moderation restrictions, disclosure obligations, and a user-data requirement. 8 S.B. 7072, 2021 Leg., Reg. Sess. (Fla. 2021) (codified as Fla. Stat. §§ 106.072, 287.137, 501.2041); see also Lewis, supra note 3. Under content-moderation restrictions, the Florida Bill states that a social media platform cannot “deplatform” a candidate, 9 Fla. Stat. § 106.072(2) (2022). meaning that a platform cannot ban or delete a candidate’s profile for more than fourteen days. 10 Id. §§ 106.072(1)(b), 501.2041(1)(c). Under this restriction, platforms cannot use “post-prioritization or shadow banning algorithms for content and material posted by or about a candidate.” 11 Id. § 501.2041(2)(h). The Florida Bill defines post-prioritization as the practice of arranging certain content “in a more or less prominent position.” 12 Id. § 501.2041(1)(e). A platform shadow bans a user when it limits or eliminates “the exposure of a user or content or material posted by a user to other users of [a] platform.” 13 Id. § 501.2041(1)(f). These restrictions do not only apply to political candidates; the law restricts social media platforms from engaging in post-prioritization, deplatforming, and shadow banning for journalistic enterprises 14 Id. § 501.2041(2)(j). as well as general users. 15 Id. § 501.2041(2)(d); see also Lewis, supra note 3.
NetChoice and the Computer and Communications Industry Association (“CCIA”), two trade associations that often represent social media companies, filed suit in the U.S. District Court for the Northern District of Florida, arguing that the Florida Bill violated their First Amendment rights to free speech. 16 Lewis, supra note 3. The district court issued a preliminary injunction in favor of NetChoice. The State of Florida appealed to the Eleventh Circuit, arguing that First Amendment scrutiny should not be implicated because the platforms are not engaging in protected speech, rather they are hosting “third-party” speech and should be labeled as “common carriers.” 17 Id.
The Eleventh Circuit affirmed the district court’s issuance of the preliminary injunction. 18 NetChoice, LLC v. Att’y Gen., 34 F.4th 1196, 1209 (11th Cir. 2022). First, the court discussed whether social media platforms, as private actors, engage in conduct protected by the First Amendment. It determined that social media platforms engage in First Amendment protected speech when they “disclose, publish, or disseminate information.” 19 Id. The court explained that a platform’s choices “about whether, to what extent, and in what manner it will disseminate speech—even speech created by others—constitute ‘editorial judgments’ protected by the First Amendment.” 20 Id. at 1210.
The court cited multiple cases as precedent to argue that a public entity can exercise editorial judgments. 21 Id. In Miami Herald Publishing Co. v. Tornillo, the Court held that a newspaper exercises editorial judgments when it decides what content to publish, and “its treatment of public issues and public officials—whether fair or unfair—constitutes the exercise of editorial judgment and control.” 22 Miami Herald Pub. Co., Div. of Knight Newspapers, Inc. v. Tornillo, 418 U.S. 241, 258 (1974). The court extended its ruling in Miami Herald to a public utility company in Pacific Gas Co. v. Public Utilities Commission of California, 23 Pacific Gas & Elec. Co. v. Pub. Utils. Com., 475 U.S. 1 (1985). to cable operators in Turner Broadcasting Systems, Inc. v. FCC, 24 Turner Broad. Sys. V. FCC, 512 U.S. 622 (1994). and to parade organizers in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston. 25 Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557 (1995); see also NetChoice, 34 F.4th at 1211.
When applying First Amendment scrutiny, the State argued that it has an interest in ensuring that there is fairness in censorship of viewpoints on social media platforms. 26 NetChoice, 34 F.4th at 1208. The court disagreed with the State’s argument, holding that the State possesses no substantial interest in preventing unfairness on social media platforms. Further, the court clarified that it is not a First Amendment violation for private actors to have unfair policies for users. 27 Id. at 1228 (citing in part to Miami Herald Pub. Co., Div. of Knight Newspapers, Inc. v. Tornillo, 418 U.S. 241, 258 (1974)).
Following Florida, Texas Governor Greg Abbott signed House Bill 20 (the “Texas Bill”) into law in September 2021. 28 H.B. 20, 87th Leg., 2d Called Sess. (Tex. 2021) (codified at Tex. Bus. & Com. Code §§ 120.001-.151, 321.001, 321.054, 321.105 and Tex. Civ. Prac. & Rem. Code §§ 143A.001-.008); see also Lewis, supra note 3. The Texas Bill restricts social media platforms from “censor[ing] 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 . . . ; or (3) a user’s geographic location.” 29 Tex. Civ. Prac. & Rem. Code § 143A.002(a)(1)–(3). The same parties who challenged the Florida legislation, NetChoice and CCIA, filed suit seeking a preliminary injunction in the U.S. District Court for the Western District of Texas. 30 Lewis, supra note 3. The district court granted the preliminary injunction, holding that the law violates social media platforms’ First Amendment rights. 31 Id. Subsequently, Texas appealed to the Fifth Circuit. The Fifth Circuit disagreed with the district court and allowed the Texas Bill to go into effect. 32 NetChoice, LLC v. Paxton, 27 F.4th 1119, 1120 (5th Cir. 2022).
In response, on May 31, 2022, the Supreme Court, in a five-to-four decision, vacated the Fifth Circuit’s order, halting the Texas Bill from going into effect. 33 NetChoice, LLC v. Paxton, 142 S. Ct. 1715 (2022). This was heard on the Court’s “shadow docket,” meaning that no majority opinion was given. 34 Harry Black & Alicia Bannon, The Supreme Court ‘Shadow Docket,’ Explained, Brennan Ctr. for Just. (July 19, 2022), https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket-explained. The Court’s shadow docket is mostly used for the Court to rule on procedural issues. Cases heard on the shadow docket do not allow for extensive briefing or oral arguments. Id. However, Justice Alito wrote a dissenting opinion, which was joined by Justices Gorsuch and Thomas. 35 See Paxton, 142 S. Ct. at 1716 (Alito, J., dissenting). Justice Kagan also dissented, but her reasoning was not shared in the dissent published by the Court. 36 Id. at 1715.
On September 16, 2022, the Fifth Circuit officially ruled on the issue and upheld the Texas Bill as constitutional. 37 NetChoice, LLC v. Paxton, No. 21-51178, 2022 U.S. App. LEXIS 26062 (5th Cir. Sept. 16, 2022). The Fifth Circuit disagreed with the Eleventh Circuit on when a social media platform engages in speech protected by the First Amendment. 38 Id. at *106. The Fifth Circuit held that when platforms censor, they are not engaging in speech protected by the First Amendment. In discussing the line of editorial judgment cases, like Miami Herald, the court said social media platforms are nothing like newspapers. 39 Id. at *31. Because platforms have algorithms to “screen out certain obscene and spam-related content,” they are not engaging in editorial judgment. 40 Id. at *39. Further, all other content on the platform is posted with “zero editorial control or judgment.” 41 Id.
Next, the court cited to Section 230 of the Communications Decency Act of 1996, which protects online platforms from lawsuits if a user posts something illegal on their platform. 42 Id. at *52. The court cited Section 230 to argue that “platforms do not operate like traditional publishers and the platforms are not ‘speaking’ when they host user submitted content.” 43 Id. The majority argued that the Communications Decency Act limits social media platforms’ abilities to moderate. 44 Id. at *56.
Further, the Fifth Circuit explained that the Texas Bill is constitutional through the common carrier doctrine. 45 Id. at *59. The Supreme Court has defined common carriers as “entities that make a public offering to provide communication facilities whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing.” 46 FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979). The common carrier doctrine was first enacted by states to “limit the discrimination in the transmission of telegraph messages.” 47 Paxton, 2022 U.S. App. LEXIS 26062, at *59. The common carrier doctrine allows states to “impose nondiscrimination obligations on communication and transportation providers that hold themselves out to serve all members of the public without individualized bargaining.” 48 Id. The Fifth Circuit explained that platforms are common carriers because they “are communication firms, hold themselves out to serve the public, and are affected with a public interest.” 49 Id. at *72-74. Because they are communication firms and serve the public, the Fifth Circuit rationalized that social media platforms “are no different than [common carriers like] Verizon or AT&T,” making them subject to First Amendment scrutiny. 50 Id. at *73.
Because of the split between the Fifth Circuit and Eleventh Circuit, the Supreme Court will likely rule on the issue of how social media should be characterized under the First Amendment. Since no precedent fits seamlessly, new precedent may need to be handed down from the highest court. 51 Id. Social media platforms have unique characteristics that differentiate them from other media outlets. For example, platforms are private companies that host third-party speech. While they do not specifically choose what to publish, they do moderate the content based on whether a specific post or user violates the terms and conditions of the platform, which each user must agree to when creating a profile. 52 NetChoice, 34 F.4th at 1220. Further, the algorithms that platforms use allow for each user to have a unique experience based on who they follow and what content they want to see. 53 Brett Barnhart, Everything You Need to Know About Social Media Algorithms, Sprout Social, (Mar. 26, 2021) https://sproutsocial.com/insights/social-media-algorithms/.
The main characteristic that makes a social media platform different from a newspaper or broadcasting station is a platform’s ability to host third-party speech. 54 Rozenshtein, supra note 6. When evaluating a platform’s various functions, the hosting function makes an online platform more like a telephone company or transportation company because they are simply hosting someone else’s speech. 55 Eugene Volokh, Treating Social Media Platforms like Common Carriers?, 1 J. Free Speech L. 377 (2021) (discussing how treating social media as a common carrier could be constitutional). However, because platforms have other functions too—like recommending content or regulating conversations by deleting offensive comments from a post—their functions are also similar to a newspaper making editorial decisions.
Further, the biggest social media companies, like Facebook and Twitter, have immense market power. Specifically with the younger generations, platforms are the main source of news and entertainment. 56 Amy Mitchell et al., Millenials and Political News, Pew Rsch. Ctr. (June 15, 2015), https://www.pewresearch.org/journalism/2015/06/01/millennials-political-news/. Because of this market control, social media could be seen through the lens of a public square, where all speech is welcome, and no viewpoint can be restricted, 57 Volokh, supra note 55. as the Fifth Circuit approached the issue. 58 See discussion supra Section II.B.
However, based on the Supreme Court’s precedent, other circuits should instead follow the Eleventh Circuit. While precedent does not fit “seamlessly,” the precedent most analogous is the line of cases starting with Miami Herald, as suggested in the dissent by Fifth Circuit Judge Southwick. 59 Paxton, U.S. App. LEXIS 26062, at *127 (Southwick, J., dissenting in part). Social media platforms should be protected by the First Amendment since they “compile, curate, and disseminate a combination of user-submitted expression, and advertisements.” 60 Id. at *128 (Southwick, J., dissenting in part). These actions of compiling, curating, and disseminating are most analogous to a newspaper making editorial decisions. As stated by the Eleventh Circuit, while many people want to promote balance and fairness, fairness is not protected by the First Amendment. 61 Id. at *153 (Southwick, J., dissenting in part).
The Fifth Circuit went the wrong direction by invoking the common carrier doctrine. Judge Southwick, in his dissent, stated that few cases intersect the common carrier doctrine and the First Amendment. 62 Id. at *149 (Southwick, J., dissenting in part). Even the few cases that do intersect the common carrier doctrine and the First Amendment, “reinforce the idea common carriers retain their First Amendment protections for their own speech.” 63 Id. at *150 (Southwick, J., dissenting in part). Moreover, the Eleventh Circuit explained that the common carrier doctrine is inapplicable because “precedent strongly suggests that internet companies like social-media platforms aren’t common carriers.” 64 NetChoice, 34 F.4th at 1220. The court cited Turner Broadcasting System, Inc. v. FCC, 65 Turner Broad. Sys. V. FCC, 512 U.S. 622 (1994). where the Court compared cable operators to “publishers, pamphleteers, and bookstore owners” rather than to “electricity providers, trucking companies, and railroads.” 66 NetChoice, 34 F.4th at 1220 (citing U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 428 (D.C. Cir. 2017) (Kavanaugh, J., dissenting)). Therefore, the Eleventh Circuit determined social media platforms are more similar to cable operators than electricity providers and trucking companies. 67 Id.
Judge Southwick’s dissent also argued how his Fifth Circuit colleagues improperly applied Section 230 of the Communications Decency Act. 68 Paxton, U.S. App. LEXIS 26062, at *150 (Southwick, J., dissenting in part). He explained that Section 230 is consistent with content-moderation, “because content-moderation is a form of editorial speech, [and] the First Amendment more fully protects it beyond the specific safeguards enumerated in §230.” 69 Id. at *151 (Southwick, J., dissenting in part).
If the Supreme Court rules that social media platforms’ speech is protected by the First Amendment, social media platforms and other tech companies should opt to self-regulate, and other legislation should be enacted to introduce uniform, formal regulation. Congress recently introduced bipartisan legislation, the Platform Accountability and Consumer Transparency Act, 70 Platform Accountability and Consumer Transparency Act, S. 797, 117th Cong. (2021). which would allow university researchers with projects approved by the National Science Foundation to have access to online platforms’ data. 71 Editorial Board, A Small Step Toward Solving Our Social Media Woes, Wash. Post (Jan. 17, 2022, 8:00 AM), https://www.washingtonpost.com/opinions/2022/01/17/legislative-step-toward-solving-our-social-media-woes/. If platforms do not comply, then they would lose immunity covered under Section 230 of the Communications Decency Act. 72 Id. Antitrust laws could also be enforced against platforms to reel in their market power. 73 Marc Jarsulic, Using Antitrust Law to Address the Market Power of Platform Monopolies, Ctr. Am. Progress (July 28, 2020), https://www.americanprogress.org/article/using-antitrust-law-address-market-power-platform-monopolies/. This may be the correct way to handle social media platforms, because while tech companies need to be regulated in some manner, their First Amendment rights should not be infringed as private actors.
Configuring social media into the restraints of First Amendment jurisprudence is tricky due to the platform’s unique qualities. While the Supreme Court’s May 2022 decision halting the Texas Bill from taking effect may provide insight as to how the Court will rule if faced with the issue again, the Justices could decide in favor of either party. Under the Florida and Texas laws, a platform would lose its editorial discretion and censorship abilities, which would allow all speech. 74 Brief of Appellees at 1, NetChoice v. Paxton, 27 F.4th 1119 (5th Cir. 2022) (No. 21-51178). Because social media platforms have great market power and control over their industry, they should be regulated in some manner. Laws like the Platform Accountability and Consumer Transparency Act would allow for regulation, while also allowing platforms to keep their editorial discretion. Until new precedent is handed down, other circuits should follow the Eleventh Circuit’s approach by comparing platforms to newspapers and publishers with editorial discretion, protected by the First Amendment.
Most Popular Social Media Networks Worldwide as of January 2022, Ranked by Number of Monthly Users, Statista, https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users/ (last visited Sept. 6, 2022).
Edward W. McLaughlin, How to Regulate Online Platforms: Why Common Carrier Doctrine is Inappropriate to Regulate Social Networks and Alternate Approaches to Protect Rights, 90 Fordham L. Rev. 185 (2021).
Alan Z. Rozenshtein, The Fifth Circuit’s Social Media Decision: A Dangerous Example of First Amendment Absolutism, L. Fare (Sept. 20, 2022, 12:52 PM), https://www.lawfareblog.com/fifth-circuits-social-media-decision-dangerous-example-first-amendment-absolutism.
News Release, Ron DeSantis Staff, Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech (May 24, 2021), https://www.flgov.com/2021/05/24/governor-ron-desantis-signs-bill-to-stop-the-censorship-of-floridians-by-big-tech/.
S.B. 7072, 2021 Leg., Reg. Sess. (Fla. 2021) (codified as Fla. Stat. §§ 106.072, 287.137, 501.2041); see also Lewis, supra note 3.
