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NetChoice, LLC v. Moody

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  1. First Amendment

Amicus brief filed by the Reporters Committee for Freedom of the Press

Court: U.S. District Court for the Northern District of Florida

Date Filed: June 14, 2021

Update: On June 30, 2021, a federal judge blocked state officials from enforcing Florida’s deplatforming law. The state then appealed to the U.S. Court of Appeals for the Eleventh Circuit. On Nov. 15, 2021, attorneys from Shullman Fugate filed a friend-of-the-court brief on behalf of the Reporters Committee and other media and First Amendment nonprofit organizations. The brief, drafted with assistance from students in the University of Virginia School of Law First Amendment Clinic, argues that Florida S.B. 7072 is unconstitutional. The amicus brief points out that such a restriction amounts to an unacceptable substitution of the government’s editorial discretion for that of the publisher (in this case, certain social media platforms). The brief also argues that the lack of a limiting principle on S.B. 7072’s effect means that it risks stifling the emergence of “new media” platforms, such as those that independent journalists and freelancers use to publish their work.

Background: In May 2021, Florida Gov. Ron DeSantis signed S.B. 7072, a law that prohibits social media companies from “willfully deplatforming” Floridian political candidates by suspending or barring them.

Backed by stiff daily fines for platforms or sites that fail to comply, the new law compels private communications platforms to carry speech that they would not otherwise host. It also allows the state to regulate how platforms curate, edit or comment on that speech.

Days after the governor signed the law, two tech industry business groups — NetChoice LLC and the Computer Communications Industry Association — sued Florida state officials, including the attorney general, challenging the constitutionality of the law and urging the U.S. District Court for the Northern District of Florida to issue a preliminary injunction enjoining state officials from enforcing sections of the law.

Our Position: The district court should grant the business groups’ request for a preliminary injunction.

  • The law’s provision forcing online platforms to carry the speech of political candidates violates First Amendment protections for the free flow of information to the public.
  • The law’s prohibition on content moderation is unconstitutional because it is contrary to the U.S. Supreme Court’s 1974 ruling in Miami Herald Publishing Co. v. Tornillo, which held that the First Amendment protects a newspaper’s “exercise of editorial control and judgment,” and it impairs newsgathering rights.

Deanna K. Shullman of Shullman Fugate represented the media coalition in this friend-of-the-court brief.

Quote: “Vesting the censorial power in the government to interfere with online platforms’ exercise of editorial control and judgment is antithetical to the public’s interest in freely receiving and disseminating information.”

Related: Before DeSantis signed S.B. 7072 into law, Grayson Clary, the Reporters Committee’s Stanton Foundation National Security/Free Press legal fellow, wrote about the legislation for This Week in Technology + Press Freedom, RCFP’s weekly newsletter. To follow developments in this case and other matters at the intersection of technology and press freedom, sign up to get the newsletter delivered straight to your inbox every week.