Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 1 of 31 Page 1 of 31 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION NETCHOICE LLC et al Plaintiffs v CASE NO 4 21cv220-RH-MAF ASHLEY BROOKE MOODY et al Defendants ____________________________________ PRELIMINARY INJUNCTION The State of Florida has adopted legislation that imposes sweeping requirements on some but not all social-media providers The legislation applies only to large providers not otherwise-identical but smaller providers and 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 numerous remarks of legislators show rather clearly that the legislation is viewpoint-based And parts contravene a federal statute This order preliminarily Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 2 of 31 Page 2 of 31 enjoins enforcement of the parts of the legislation that are preempted or violate the First Amendment I The Lawsuit The plaintiffs are NetChoice LLC and Computer Communications Industry Association Both are trade associations whose members include socialmedia providers subject to the legislation at issue The plaintiffs assert the rights of their affected members and have standing to do so See e g Hunt v Wash State Apple Advert Comm’n 432 U S 333 342-43 1977 The defendants are the Attorney General of Florida the members of the Florida Elections Commission and a Deputy Secretary of the Florida Department of Management Services all in their official capacities The plaintiffs named the Deputy Secretary because the Secretary’s position was vacant Each of the defendants has a role in enforcement of the provisions at issue and is a proper defendant under Ex parte Young 209 U S 123 1908 For convenience this order sometimes refers to the defendants simply as “the State ” The complaint challenges Senate Bill 7072 as adopted by the 2021 Florida Legislature “the Act” The Act created three new Florida statutes § 106 072 § 287 137 and § 501 2041 The Act also included findings and a severability clause The Act is scheduled to take effect on July 1 2021 Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 3 of 31 Page 3 of 31 Count 1 of the complaint alleges the Act violates the First Amendment’s free-speech clause by interfering with the providers’ editorial judgment compelling speech and prohibiting speech Count 2 alleges the Act is vague in violation of the Fourteenth Amendment Count 3 alleges the Act violates the Fourteenth Amendment’s equal protection clause by impermissibly discriminating between providers that are or are not under common ownership with a large theme park and by discriminating between providers that do or do not meet the Act’s size requirements Count 4 alleges the Act violates the Constitution’s dormant commerce clause Count 5 alleges the Act is preempted by 47 U S C § 230 e 3 which together with § 230 c 2 A expressly prohibits imposition of liability on an interactive computer service—this includes a social-media provider—for action taken in good faith to restrict access to material the service finds objectionable The plaintiffs have moved for a preliminary injunction The motion has been fully briefed and orally argued Each side has submitted evidentiary material The motion is ripe for a decision II Preliminary-Injunction Standard As a prerequisite to a preliminary injunction a plaintiff must establish a substantial likelihood of success on the merits that the plaintiff will suffer irreparable injury if the injunction does not issue that the threatened injury outweighs whatever damage the proposed injunction may cause a defendant and Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 4 of 31 Page 4 of 31 that the injunction will not be adverse to the public interest See e g Charles H Wesley Educ Found Inc v Cox 408 F 3d 1349 1354 11th Cir 2005 Siegel v LePore 234 F 3d 1163 1176 11th Cir 2000 en banc This order addresses these prerequisites The order addresses the merits because likelihood of success on the merits is one of the prerequisites With further factual development the analysis may change Statements in this order about the facts should be understood to relate only to the current record and the properly considered material now available Statements about the merits should be understood only as statements about the likelihood of success as viewed at this time III The Statutes A Terminology Before setting out the substance of the challenged statutes a word is in order about terminology This order sometimes uses the term “social-media provider” to refer to what most people on the street would probably understand that term to mean—so YouTube Facebook Twitter and dozens of smaller but similar providers The distinguishing characteristic is perhaps this the primary function of a social-media provider or at least a primary function is to receive content from users and in turn to make the content available to other users This is hardly a precise definition but none is needed the term is used only for purposes of this Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 5 of 31 Page 5 of 31 order The term “social-media provider ” as used in this order is not limited to providers who are covered by the challenged statutes the term is used instead to apply to all such entities including those smaller than the providers covered by the statutes and those under common ownership with a large theme park The challenged statutes in contrast use a slightly different term “social media platform ” See Fla Stat § 501 2041 1 g emphasis added There is no significance to this order’s use of “provider” to describe all social-media entities instead of “platform”—the word the statutes use to define the more limited set of entities covered by the statutes The order just needs different terms to refer to the substantially different sets of entities When this order uses “social media platform”—the statutory term—with or without quotation marks the reference ordinarily will be to an entity that both meets the statutory definition and is a social-media provider as described above This order sometimes shortens the phrase to a single word “platform ” At least on its face the statutory definition also applies to systems nobody would refer to as social media the definition says nothing about sharing content with other users The State says the definition should nonetheless be understood to be limited to providers of social media within the common understanding—the State says this comports with the statutory findings and the statutes’ obvious purpose The State may be correct For present purposes it makes no difference Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 6 of 31 Page 6 of 31 B Removing Candidates A social-media provider sometimes bars a specific user from posting on the provider’s site This can happen for example when a user violates the provider’s standards by engaging in fraud spreading a foreign government’s disinformation inciting a riot or insurrection providing false medical or public-health information or attempting to entice minors for sexual encounters Newly enacted Florida Statutes § 106 072 prohibits a social media platform from barring from its site any candidate for office—that is any person who has filed qualification papers and subscribed to the candidate’s oath See Fla Stat § 106 011 3 e It is a low bar C Posts “By or About” a Candidate A social-media provider sometimes takes down a user’s post sometimes restricts access to a post and sometimes adds content to a post saying for example that a post has been determined not to be true or that accurate information on the subject can be found at a specified location And a social-media provider sometimes rearranges content on its site including for example by making more readily available to a user content the provider believes the user will most wish to see Social-media providers also often elevate content—make it more readily available to chosen users—when paid by advertisers to do so Social-media providers routinely use algorithms as part of these processes Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 7 of 31 Page 7 of 31 Florida Statutes § 501 2041 2 h prohibits a social media platform from using “post-prioritization or shadow banning algorithms” for content “posted by or about a user” who is known by the platform to be a candidate for office The statute does not define “about” a candidate “Post-prioritization” means “action by a social media platform to place feature or prioritize certain content or material ahead of below or in a more or less prominent position than others in a newsfeed a feed a view or in search results ” Fla Stat § 501 2041 1 e But the term does not apply to ads—to content the platform is paid to carry Id “Shadow ban” means action by a social media platform “to limit or eliminate the exposure of a user or content or material posted by a user to other users of the social media platform ” Id § 501 2041 1 f At least by its terms § 501 2041 2 h apparently prohibits a social media platform from using an algorithm to put a candidate’s post in the proper feeds—to put the post in the feed of a user who wishes to receive it or to exclude the candidate’s post from the feed of a user who does not wish to receive it Including a post in the feed of a user who wishes to receive it places the post ahead of and in a more prominent position that the many posts the user will not receive at all Excluding a post from the feed of a user who does not wish to receive it will eliminate the user’s exposure to the post Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 8 of 31 Page 8 of 31 In any event the statute does not explain how if the platform cannot use an algorithm “for content” by or about a candidate the platform can know before it has violated the statute by using an algorithm whether a post is by or about a candidate The statute has a paid-content exception to the post-prioritization ban postprioritization of “certain content or material” from or about a candidate based on payments from the candidate or a third party is not a violation The statute does not specify what “certain” refers to—if it just means all such paid content the word “certain” is superfluous But the whole paid-content exception may be superfluous anyway the definition of post-prioritization has its own paid-content exception See id § 501 2041 1 e D Posts by a “Journalistic Enterprise” Florida Statutes § 501 2041 2 j prohibits a social media platform from taking action to “censor deplatform or shadow ban” a “journalistic enterprise” based on the content of its publication or broadcast “Censor” is broadly defined to include not just deleting content but adding content “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 Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 9 of 31 Page 9 of 31 Fla Stat § 501 2041 1 b “Deplatform” means to ban a user permanently or for longer than 14 days Id § 501 2041 1 c “Shadow ban” has the meaning set out above See id § 501 2041 1 f The statute defines “journalistic enterprise” in a manner that covers many entities that are engaged in journalism but many that are not any retailer who does business in Florida has a website of substantial size and fills 100 000 online orders per month apparently qualifies A small newspaper in contrast—one with fewer than 50 000 paid subscribers and fewer than 100 000 active monthly users— does not qualify no matter how high its journalistic standards The definition provides “Journalistic enterprise” means an entity doing business in Florida that 1 Publishes in excess of 100 000 words available online with at least 50 000 paid subscribers or 100 000 monthly active users 2 Publishes 100 hours of audio or video available online with at least 100 million viewers annually 3 Operates a cable channel that provides more than 40 hours of content per week to more than 100 000 cable television subscribers or 4 Operates under a broadcast license issued by the Federal Communications Commission Fla Stat § 501 2041 1 d Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 10 of 31 Page 10 of 31 The restrictions on a platform’s treatment of posts by journalistic enterprises have two exceptions they do not apply to obscenity or paid content E Opting Out of Post-Prioritization and Shadow Banning Florida Statutes § 501 2041 2 f requires a social media platform to “ c ategorize” algorithms used for post-prioritization and shadow banning and to allow a “user” to “opt out of post-prioritization and shadow banning algorithm categories to allow sequential or chronological posts and content ” On its face this allows a user who posts content to insist it be shown to other users in chronological order—not in the order the recipient has otherwise specified or the order that based on the recipient’s profile and history the social media platform believes would be most preferred by or useful to the recipient It is not clear how a social media platform would display content posted by multiple users who all opt out—a wild west of content on which the platform would be prohibited from using an algorithm The State says though that “user” in § 501 2041 2 f means only a recipient of information not a person who posts information But “user” is explicitly defined in the statute to mean a person who resides or is domiciled in Florida and “has an account on a social media platform regardless of whether the person posts or has posted content or material to the social media platform ” Id § 501 2041 1 h Those who post content have accounts no less than those who Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 11 of 31 Page 11 of 31 receive content And “user” is consistently used in other provisions to include those who post content not just recipients See e g id § 501 2041 2 d prohibiting a social media platform from censoring or shadow banning “a user’s content” or deplatforming “a user” without meeting specific conditions id § 501 2041 2 e allowing “a user” to request the number of participants “who were provided or shown the user’s content or posts” emphasis added id § 501 2041 2 h restricting treatment of content “posted by a user” emphasis added see also id § 501 2041 2 b c g i F Consistent Application of Standards Florida Statutes § 501 2041 2 a requires a social media platform to “publish the standards including detailed definitions it uses or has used for determining how to censor deplatform and shadow ban ” And § 501 2041 2 b requires a social media platform to “apply censorship deplatforming and shadow banning standards in a consistent manner among its users on the platform ” The State says “standards ” in § 501 2041 2 b means the platform’s own standards as published under § 501 2041 2 a That is probably correct The statute does not define “consistent manner ” And the statute does not address what a social media platform should do when the statute itself prohibits consistent application of the platform’s standards—for example when a candidate engages in conduct that would appropriately lead to deplatforming any other Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 12 of 31 Page 12 of 31 person or when content “by or about” a candidate if by or about anyone else would be post-prioritized or when a “journalistic enterprise” posts content that would otherwise be censored G Changing the Standards Florida Statutes § 501 2041 2 c prohibits a social media platform from changing its “user rules terms and agreements”—this apparently includes the standards published under § 501 2041 2 a —more often than once every 30 days The provision requires the social media platform to inform each user about any changes before they take effect H Information Florida Statutes § 501 2041 2 includes additional provisions requiring social media platforms to provide information to users Under § 501 2042 2 d a platform must give notice to a user who is deplatformed or who posts content that is censored or shadow banned Under § 501 2041 2 i the platform must allow a deplatformed user access to the user’s content for 60 days after the notice The notice for censored content must be especially detailed it must include a “thorough rationale explaining the reason that the social media platform censored the user ” § 501 2041 3 c and a “precise and thorough explanation of how the social media platform became aware of the censored content or material including a thorough explanation of the algorithms Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 13 of 31 Page 13 of 31 used if any to identify or flag the user’s content or material as objectionable ” Id § 501 2041 3 d The notice need not be given however for censored content that is obscene Id § 501 2041 4 Under § 501 2041 2 e a platform must on request tell a user how many other participants were shown the user’s posts or content Under § 501 2041 2 g a platform must provide users annual notice of algorithms used for post-prioritization and shadow banning and of their right to opt out of the use of those algorithms I Antitrust Florida Statutes § 287 137 allows the State to debar from public contracting a social media platform that has committed or sometimes just been accused of an antitrust violation The section raises issues under both state and federal law but it poses no threat of immediate irreparable harm to social media platforms The statute is not further addressed in or enjoined by this order IV Likelihood of Success on the Merits A 47 U S C § 230 In Stratton Oakmont Inc v Prodigy Services Co 1995 WL 323710 at 3–4 N Y Sup Ct May 24 1995 an anonymous user posted allegedly defamatory content on an electronic bulletin board—an earlier version of what today might be called social media The court said that if the provider of such a Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 14 of 31 Page 14 of 31 bulletin board did not undertake to review posted content—much as a librarian does not undertake to review all the books in a library—the provider would not be deemed the publisher of a defamatory post absent sufficient actual knowledge of the defamatory nature of the content at issue On the facts of that case though the provider undertook to screen the posted content—to maintain a “family oriented” site The court held this subjected the provider to liability as a publisher of the content At least partly in response to that decision which was deemed a threat to development of the internet Congress enacted 47 U S C § 230 Congress sought “to encourage service providers to self-regulate the dissemination of offensive material over their services ” Zeran v America Online Inc 129 F 3d 327 331 4th Cir 1997 and to allow “computer service providers to establish standards of decency without risking liability for doing so ” Domen v Vimeo Inc 991 F 3d 66 73 2d Cir 2021 Under § 230 a provider of interactive computer services—this includes as things have evolved a social-media provider—cannot be “held liable” for any action “taken in good faith to restrict access to or availability of material that the provider considers to be obscene lewd lascivious filthy excessively violent harassing or otherwise objectionable ” Id § 230 c 2 The statute says it does not prevent a state from enforcing any consistent state law—the federal statute thus Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 15 of 31 Page 15 of 31 does not preempt the field—but the statute does expressly preempt inconsistent state laws “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section ” Id § 230 e 3 Florida Statutes § 106 072 prohibits a social media platform from deplatforming a candidate for office and imposes substantial fines $250 000 per day for a statewide office and $25 000 per day for any other office But deplatforming a candidate restricts access to material the platform plainly considers objectionable within the meaning of 47 U S C § 230 c 2 If this is done in good faith—as can happen—the Florida provision imposing daily fines is preempted by § 230 e 3 Good faith for this purpose is determined by federal law not state law Removing a candidate from a platform based on otherwiselegitimate generally applicable standards—those applicable to individuals who are not candidates—easily meets the good-faith requirement Indeed even a mistaken application of standards may occur in good faith The federal statute also preempts the parts of Florida Statutes § 501 2041 that purport to impose liability for other decisions to remove or restrict access to content See Fla Stat § 501 2041 6 creating a private right of action for damages for violations of § 501 2041 2 b and 2 d 1 id § 501 2041 2 b requiring a social media platform to apply censorship deplatforming and shadow banning standards in a consistent manner id § 501 2041 2 d 1 prohibiting a social Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 16 of 31 Page 16 of 31 media platform from deplatforming a user or censoring or shadow banning a user’s content without notifying the user § 501 2041 2 making any violation of that subsection an unfair or deceptive act or practice within the meaning of § 501 204—and thus providing a private right of action for damages under § 501 211 Claims based on alleged inconsistency of a platform’s removal of some posts but not others are preempted See Domen 991 F 3d at 73 In sum the plaintiffs are likely to prevail on their challenge to the preempted provisions—to those applicable to a social media platform’s restriction of access to posted material This does not however invalidate other provisions for those the plaintiffs’ challenge must rise or fall with their constitutional claims B First Amendment 1 Application to Social-Media Providers Although a primary function of social-media providers is to receive content from users and in turn to make the content available to other users the providers routinely manage the content allowing most banning some arranging content in ways intended to make it more useful or desirable for users sometimes adding the providers’ own content The plaintiffs call this curating or moderating the content posted by users In the absence curation a social-media site would soon become unacceptable—and indeed useless—to most users Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 17 of 31 Page 17 of 31 The plaintiffs say—correctly—that they use editorial judgment in making these decisions much as more traditional media providers use editorial judgment when choosing what to put in or leave out of a publication or broadcast The legislative record is chock full of statements by state officials supporting the view that the providers do indeed use editorial judgment A constant theme of legislators as well as the Governor and Lieutenant Governor was that the providers’ decisions on what to leave in or take out and how to present the surviving material are ideologically biased and need to be reined in Where social media fit in traditional First Amendment jurisprudence is not settled But three things are clear First the State has asserted it is on the side of the First Amendment the plaintiffs are not It is perhaps a nice sound bite But the assertion is wholly at odds with accepted constitutional principles The First Amendment says “Congress” shall make no law abridging the freedom of speech or of the press The Fourteenth Amendment extended this prohibition to state and local governments The First Amendment does not restrict the rights of private entities not performing traditional exclusive public functions See e g Manhattan Cmty Access Corp v Halleck 139 S Ct 1921 1930 2019 So whatever else may be said of the providers’ actions they do not violate the First Amendment Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 18 of 31 Page 18 of 31 Second the First Amendment applies to speech over the internet just as it applies to more traditional forms of communication See e g Reno v ACLU 521 U S 844 870 1997 stating that prior cases including those allowing greater regulation of broadcast media “provide no basis for qualifying the level of First Amendment scrutiny that should be applied” to the internet Third state authority to regulate speech has not increased even if as Florida argued nearly 50 years ago and is again arguing today one or a few powerful entities have gained a monopoly in the marketplace of ideas reducing the means available to candidates or other individuals to communicate on matters of public interest In Miami Herald Publishing Co v Tornillo 418 U S 241 1974 the Court rejected just such an argument striking down a Florida statute requiring a newspaper to print a candidate’s reply to the newspaper’s unfavorable assertions A similar argument about undue concentration of power was commonplace as the social-media restrictions now at issue advanced through the Florida Legislature But here as in Tornillo the argument is wrong on the law the concentration of market power among large social-media providers does not change the governing First Amendment principles And the argument is also wrong on the facts Whatever might be said of the largest providers’ monopolistic conduct the internet provides a greater opportunity for individuals to publish their views—and for candidates to communicate directly with voters—than existed before the internet Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 19 of 31 Page 19 of 31 arrived To its credit the State does not assert that the dominance of large providers renders the First Amendment inapplicable That brings us to issues about First Amendment treatment of social-media providers that are not so clearly settled The plaintiffs say in effect that they should be treated like any other speaker The State says in contrast that socialmedia providers are more like common carriers transporting information from one person to another much as a train transports people or products from one city to another The truth is in the middle More generally the plaintiffs draw support from three Supreme Court decisions in which a state mandate for a private entity to allow unwanted speech was held unconstitutional On the State’s side are two Supreme Court decisions in which a state or federal mandate for a private entity to allow unwanted speech was held constitutional Each side claims the cases on its side are dispositive but this case again falls in the middle On balance the decisions favor the plaintiffs The plaintiffs push hardest of Tornillo which as set out above held unconstitutional the Florida statute requiring a newspaper to allow a candidate to reply to the newspaper’s unfavorable statements But newspapers unlike socialmedia providers create or select all their content including op-eds and letters to the editor Nothing makes it into the paper without substantive discretionary review including for content and viewpoint a newspaper is not a medium invisible Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 20 of 31 Page 20 of 31 to the provider Moreover the viewpoint that would be expressed in a reply would be at odds with the newspaper’s own viewpoint Social media providers in contrast routinely use algorithms to screen all content for unacceptable material but usually not for viewpoint and the overwhelming majority of the material never gets reviewed except by algorithms Something well north of 99% of the content that makes it onto a social media site never gets reviewed further The content on a site is to that extent invisible to the provider Similarly in Hurley v Irish-American Gay Lesbian and Bisexual Group of Boston 515 U S 557 1995 a state court ruled that the state’s publicaccommodation law required an association conducting a private parade to allow participation by an organization advocating gay rights The parade association asserted the gay-rights group’s participation would contravene what the association was attempting to communicate The Supreme Court held the association had a First Amendment right to exclude the gay-rights group Again though the parade involved a limited number of participants all undoubtedly approved in the association’s discretionary judgment including for viewpoint This was not an invisible-to-the-provider event The third case on the plaintiffs’ side is Pacific Gas Electric Co v Public Utilities Commission of California 475 U S 1 1986 There a public utility included in its billing envelopes its own viewpoint-laden newsletters The state Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 21 of 31 Page 21 of 31 directed the utility to include in its billing envelopes four times per year a private watchdog organization’s newsletters setting out a viewpoint with which the utility disagreed The Supreme Court held this unconstitutional The utility undoubtedly knew precisely what went into its billing envelopes and newsletters as in Tornillo and Hurley this was not an invisible-to-the-provider forum These three cases establish that a private party that creates or uses its editorial judgment to select content for publication cannot be required by the government to also publish other content in the same manner—in each of these instances content with which the party disagreed But social-media providers do not use editorial judgment in quite the same way The content on their sites is to a large extent invisible to the provider Even so the activities of social media platforms that are the focus of the statutes now at issue are not the routine posting of material without incident or the routine exclusion without incident of plainly unacceptable content These statutes are concerned instead primarily with the ideologically sensitive cases Those are the very cases on which the platforms are most likely to exercise editorial judgment Indeed the targets of the statutes at issue are the editorial judgments themselves The State’s announced purpose of balancing the discussion—reining in the ideology of the large social-media providers—is precisely the kind of state action held unconstitutional in Tornillo Hurley and PG E Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 22 of 31 Page 22 of 31 On the other side the State pushes hardest on Rumsfeld v FAIR 547 U S 47 2006 There the Court upheld a federal statute conditioning law schools’ receipt of federal funds on allowing military recruiters the same access as other recruiters to the school’s facilities and students The Court held this was for the most part conduct not speech Indeed the schools objected not primarily because they disagreed with anything they expected the recruiters to do or say on campus but because they disagreed with the government’s policy on gays in the military The statute did not require the schools to say anything at all nor did the statute prohibit the schools from saying whatever they wished whenever and however they wished It was unlikely anyone would conclude from the military recruiters’ presence that the schools supported the military’s policy Similarly in PruneYard Shopping Center v Robins 447 U S 74 1980 a shopping center refused to allow individuals to solicit petition signatures from members of the public at the shopping center The California Supreme Court held the individuals had the right under state law to engage in the proposed activity The ruling did not compel the shopping center to say anything at all and the ruling did not prohibit the center from saying anything it wished when and how it wished The United States Supreme Court said it was unlikely anyone would attribute the solicitation activities to the shopping center and with no state action Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 23 of 31 Page 23 of 31 compelling the center to speak or restricting it from doing so there was no violation of the First Amendment FAIR and PruneYard establish that compelling a person to allow a visitor access to the person’s property for the purpose of speaking is not a First Amendment violation so long as the person is not compelled to speak the person is not restricted from speaking and the message of the visitor is not likely to be attributed to the person The Florida statutes now at issue unlike the state actions in FAIR and PruneYard explicitly forbid social media platforms from appending their own statements to posts by some users And the statutes compel the platforms to change their own speech in other respects including for example by dictating how the platforms may arrange speech on their sites This is a far greater burden on the platforms’ own speech than was involved in FAIR or PruneYard In sum it cannot be said that a social media platform to whom most content is invisible to a substantial extent is indistinguishable for First Amendment purposes from a newspaper or other traditional medium But neither can it be said that a platform engages only in conduct not speech The statutes at issue are subject to First Amendment scrutiny 2 Strict Scrutiny Viewpoint- and content-based restrictions on speech are subject to strict scrutiny See e g Reed v Town of Gilbert Ariz 576 U S 155 2015 A law Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 24 of 31 Page 24 of 31 restricting speech is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed ” Id at 163 citing Sorrell v IMS Health Inc 564 U S 552 563-64 2011 Carey v Brown 447 U S 455 462 1980 and Police Dep’t of Chicago v Mosley 408 U S 92 95 1972 Laws that are facially content-neutral but that cannot be justified without reference to the content of the regulated speech or that were adopted because of disagreement with the speaker’s message also must satisfy strict scrutiny See Reed 576 U S at 164 These principles plainly require strict scrutiny here The Florida statutes at issue are about as content-based as it gets Thus for example § 106 072 applies to deplatforming a candidate not someone else this is a content-based restriction Similarly § 501 2041 2 h imposes restrictions applicable only to material posted “by or about a candidate ” This again is content-based And § 501 2041 2 j prohibits a social media platform from taking action based on the “content” of a journalistic enterprise’s post prohibiting a platform from making a decision based on content is itself a content-based restriction That the statutes are content-based in these and other respects triggers strict scrutiny The plaintiffs assert too with substantial factual support that the actual motivation for this legislation was hostility to the social media platforms’ perceived liberal viewpoint Thus for example the Governor’s signing statement quoted the bill’s sponsor in the House of Representatives “Day in and day out our Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 25 of 31 Page 25 of 31 freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley But in Florida we said this egregious example of biased silencing will not be tolerated ” Similarly in another passage quoted by the Governor the Lieutenant Governor said “What we’ve been seeing across the U S is an effort to silence intimidate and wipe out dissenting voices by the leftist media and big corporations Thankfully in Florida we have a Governor that fights against big tech oligarchs that contrive manipulate and censor if you voice views that run contrary to their radical leftist narrative ” This viewpoint-based motivation without more subjects the legislation to strict scrutiny root and branch See e g Rosenberger v Rector and Visitors of Univ of Va 515 U S 819 829 1995 “The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction ” citing Perry Ed Ass’n v Perry Local Educators’ Ass’n 460 U S 37 46 1983 Moreover these statements are consistent with the statutory definition of “social media platform ” which extends only to and thus makes the legislation applicable only to large entities—those with $100 million in revenues or 100 million monthly participants As the Supreme Court has recognized discrimination between speakers is often a tell for content discrimination See e g Citizens United v Fed Election Comm’n 558 U S 310 340 2010 “Speech restrictions Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 26 of 31 Page 26 of 31 based on the identity of the speaker are all too often simply a means to control content ” That is the case here The state has suggested no other basis for imposing these restrictions only on the largest providers And even without evidence of an improper motive the application of these requirements to only a small subset of social-media entities would be sufficient standing alone to subject these statutes to strict scrutiny See e g Minneapolis Star Tribune Co v Minnesota Comm’r of Revenue 460 U S 575 591 1983 Arkansas Writers’ Project Inc v Ragland 481 U S 221 229 1987 Similar analysis applies to the treatment of “journalistic enterprises” in § 501 2041 2 j The statute affords their posts favored treatment—but to qualify an entity must meet the minimum size requirement of § 501 2041 1 d Finally the same is true of the exclusion for social-media providers under common ownership with a large Florida theme park The State asserted in its brief that the provision could survive intermediate scrutiny but the proper level of scrutiny is strict and in any event when asked at oral argument the State could suggest no theory under which the exclusion could survive even intermediate scrutiny The State says this means only that the exclusion fails but that is at least questionable Despite the obvious constitutional issue posed by the exclusion the Legislature adopted it apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens It is a stretch to say the severability Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 27 of 31 Page 27 of 31 clause allows a court to impose these burdens on the statutorily excluded entities when the Legislature has not passed and the Governor has not signed a statute subjecting these entities to these requirements To survive strict scrutiny an infringement on speech must further a compelling state interest and must be narrowly tailored to achieve that interest See e g Reed 576 U S at 171 These statutes come nowhere close Indeed the State has advanced no argument suggesting the statutes can survive strict scrutiny They plainly cannot First leveling the playing field—promoting speech on one side of an issue or restricting speech on the other—is not a legitimate state interest See e g Arizona Free Enter Club v Bennett 564 U S 721 749-50 2011 Whatever might be said of any other allegedly compelling state interest these statutes are not narrowly tailored Like prior First Amendment restrictions this is an instance of burning the house to roast a pig See e g Reno v ACLU 521 U S at 882 Sable Commc’n of Cal Inc v FCC 492 U S 115 131 1989 The plaintiffs are likely to prevail on the merits of their claim that these statutes violate the First Amendment There is nothing that could be severed and survive 3 Intermediate Scrutiny The result would be the same under intermediate scrutiny—the level of scrutiny that applies to some content-neutral regulations of speech To survive Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 28 of 31 Page 28 of 31 intermediate scrutiny a restriction on speech must further an important or substantial governmental interest unrelated to the suppression of free expression and the restriction must be no greater than essential to further that interest The narrow tailoring requirement is satisfied so long as the governmental interest would be achieved less effectively absent the restriction See Turner Broad Sys Inc v FCC 512 U S 622 662 1994 The provisions at issue here do not meet the narrow-tailoring requirement Indeed some of the disclosure provisions seem designed not to achieve any governmental interest but to impose the maximum available burden on the social media platforms Intermediate scrutiny does not apply because these statutes are not contentor viewpoint-neutral And the statutes would not survive intermediate scrutiny even if it applied C Vagueness Florida Statutes § 501 2041 is riddled with imprecision and ambiguity But this without more does not render the statute unconstitutional As the State correctly notes uncertainty about a statute’s application to marginal cases—or even to not-so-marginal cases—can be resolved through judicial construction But violations of this statute subject a social media platform to statutory damages that seem more punitive than compensatory up to $100 000 per claim Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 29 of 31 Page 29 of 31 Two provisions are especially vague First § 501 2041 2 b requires a social media platform to apply its standards in a consistent manner but as set out supra at 12 this requirement is itself inconsistent with other provisions Second § 501 2041 2 h imposes a requirement that as set out supra at 7-8 is incomprehensible Vagueness presents heightened concern in a statute that like this one trenches on First Amendment interests See e g Wollschlaeger v Gov Fla 848 F 3d 1293 1320 11th Cir 2017 This order need not and does not decide whether vagueness would provide an independent ground for a preliminary injunction V Other Prerequisites The plaintiffs easily meet the other prerequisites to a preliminary injunction If a preliminary injunction is not issued the plaintiffs’ members will sometimes be compelled to speak and will sometimes be forbidden from speaking all in violation of their editorial judgment and the First Amendment This is irreparable injury The threatened injury outweighs whatever damage the injunction may cause the State And the injunction will serve not be adverse to the public interest When a plaintiff is likely to prevail on the merits of a First Amendment claim these other prerequisites to a preliminary injunction are usually met See e g Otto v City of Boca Raton 981 F 3d 854 870 11th Cir 2020 VI Conclusion Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 30 of 31 Page 30 of 31 The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal Balancing the exchange of ideas among private speakers is not a legitimate governmental interest And even aside from the actual motivation for this legislation it is plainly content-based and subject to strict scrutiny It is also subject to strict scrutiny because it discriminates on its face among otherwise-identical speakers between social-media providers that do or do not meet the legislation’s size requirements and are or are not under common ownership with a theme park The legislation does not survive strict scrutiny Parts also are expressly preempted by federal law For these reasons IT IS ORDERED 1 The plaintiffs’ motion for a preliminary injunction ECF No 22 is granted 2 The defendants Ashley Brooke Moody Joni Alexis Poitier Jason Todd Allen John Martin Hayes Kymberlee Curry Smith and Patrick Gillespie must take no steps to enforce Florida Statutes §§ 106 072 or 501 2041 until otherwise ordered The preliminary injunction set out in this paragraph will take effect upon the posting of security in the amount of $1 000 or an undertaking to pay up to $1 000 for costs and damages sustained by a party found to have been wrongfully enjoined The preliminary injunction binds the defendants and their officers Case No 4 21cv220-RH-MAF Case 4 21-cv-00220-RH-MAF Document 113 Filed 06 30 21 Page 31 of 31 Page 31 of 31 agents servants employees and attorneys—and others in active concert or participation with any of them—who receive actual notice of this injunction by personal service or otherwise SO ORDERED on June 30 2021 s Robert L Hinkle United States District Judge Case No 4 21cv220-RH-MAF