Circuit Split: Are Social Media Platforms Maintaining Community Guidelines or Censoring the People?

In a recent 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit upheld a Texas law that bans social media platforms from discriminating against or censoring users based on their viewpoints.[1] The ruling contrasts with a similar case from the U.S. Court of Appeals for the Eleventh Circuit, where the court instead held that social media companies may de-platform users as they see fit.[2]

In the days since the Fifth Circuit’s ruling, Florida’s Attorney General capitalized on the circuit split and appealed the Eleventh Circuit’s decision, paving the way for a potential Supreme Court showdown.  If the Court grants certiorari, it would be positioned to decide the extent to which social media companies can regulate speech on their platforms and if such conduct is protected by the First Amendment.

The Fifth Circuit Upheld a Texas Law Preventing Social Media Platforms from Censoring Users.

Texas House Bill 20 (“HB 20”), the statute at issue in NetChoice, L.L.C. v. Paxton, prevents large social media platforms from censoring users based on their viewpoints.[3] Under the bill, platforms with over 50 million active monthly United States users can be exposed to lawsuits if they remove or penalize a user for violating the platform’s community guidelines.[4] Slighted social media consumers can bring actions for declaratory and injunctive relief, while the state attorney general may sue to enforce the law.[5] Essentially, users can post whatever they like on their social media without fear of being banned or having their content restricted in any way.

But the bill did not come without opposition. Although social media platforms can still censor “certain specific threats of violence”—which remain unprotected under the First Amendment—opponents of the bill argued that HB 20 unfairly compels companies to treat vastly different expressions as equal.[6] The social media platforms asserted that HB 20 would restrict their ability to remove or suppress content like pro-Nazi and terrorist propaganda.[7] By ruling in favor of the Texas law, the Fifth Circuit effectively sided with conservatives who have long argued that large social media companies suppress their online expression, despite evidence that shows politically conservative voices dominating the online sphere.[8] 

The Eleventh Circuit Struck Down a Florida Law That Similarly Restricted Social Media Censorship.

In May, the Eleventh Circuit upheld a preliminary injunction against a Florida law that it found likely to violate the First Amendment by restricting forms of online speech.[9] Florida Senate Bill 7073 (“SB 7072”), prohibited social media companies from de-platforming or censoring political candidates, and placed restrictions on censoring speech from journalistic entities.[10]

In NetChoice, LLC v. Attorney General, Florida, the Eleventh Circuit deemed it “substantially likely that social media companies” are private actors and that their content moderation decisions are protected forms of editorial judgment under the First Amendment.[11] The court reasoned that even though social media platforms host individual users’ content, the platforms create speech by establishing community standards, publishing original content, and adding disclaimers to posts.[12] The court also found that the platforms retain the right to exercise editorial judgment by removing posts that violate their terms of service.[13] Similar to the Texas law, Florida Legislature enacted SB 7072 to regulate social media companies they viewed as benefiting liberal ideologies online.[14] In ruling against the law, the Eleventh Circuit agreed with social media platforms about their platform decisions being protected under the First Amendment.

Circuits Disagree: Are Platforms Acting with Editorial Judgment When Moderating Online Content?

Whether social media platforms exercise editorial judgment appears to be connected to whether their actions are protected under the First Amendment—and, accordingly, if the laws in question are constitutional. In the cases at issue, the circuits disagree on the applicability of the First Amendment’s prohibition against laws that abridge the freedom of speech.

The Fifth Circuit held that HB 20 “does not regulate the Platforms’ speech at all; it protects other people’s speech and regulates the Platforms’ conduct.”[15] The court of appeal rejected the social media apps’ argument that preventing platforms from removing certain viewpoints from their forums infringed on the platforms’ freedom of speech.[16] The Fifth Circuit contrasted social media platforms to newspapers, which exercise editorial control and cannot be forced to print material they otherwise would not publish.[17] Ultimately, the Fifth Circuit held that because social media platforms “exercise virtually no editorial control or judgment,” it could not be treated as if it were a newspaper.[18]

However, the Eleventh Circuit disagreed, holding that social media platforms are private companies that engage in First Amendment protected speech when they publish or disseminate information.[19] The court compared social media companies to newspapers, noting that they both moderate the content that appears on their platforms as a form of editorial judgment.[20] By removing a post, a platform “makes a judgment about whether and to what extent it will publish information to its users,” which is a reflection of the company’s values.[21] The Eleventh Circuit found that exercising editorial judgment is expressive because it communicates the platform’s stance toward the speech, holding that “a law that requires the platform to disseminate speech with which it disagrees interferes with its own message and thereby implicates its First Amendment rights.”[22]

The circuit split regarding editorial judgment seems central to the First Amendment argument, and a Supreme Court ruling in either direction would shore up or fundamentally weaken platforms’ ability to make independent moderation decisions.

Both Courts Applied Intermediate Scrutiny but Disagreed on If It Was Met.

The Eleventh Circuit applied First Amendment scrutiny to the Florida law largely because SB 7072 would restrict the platforms’ exercise of editorial judgment by forbidding them from de-platforming political candidates or journalistic entities they found disagreeable.[23] For instance, the court speculated that a social media platform would be unable to remove terrorist propaganda if peddled by a political candidate.[24] It failed to find any compelling or narrowly tailored government interest in the Florida bill’s restrictions, and although it acknowledged that strict scrutiny would likely apply to some parts of the law, it reasoned that a strict scrutiny analysis was unnecessary because the bill’s content moderation restrictions would trigger and fail an intermediate scrutiny review.[25]

The Fifth Circuit distinguished the Eleventh Circuit’s rationale, in part by generalizing that “SB 7072 prohibits all censorship of some speakers, while HB 20 prohibits some censorship of all speakers.”[26] The court found HB 20’s regulation of speech to be content-neutral and subject to intermediate scrutiny because the prohibition of viewpoint-based discrimination applied equally, regardless of the user’s views.[27] It also found that the state’s interest in “protecting the free exchange of ideas and information” was sufficiently valuable, that the language protects user speech rather than suppressing platforms’ speech, and that the bill wasn’t overly burdensome.[28]

In addition to the differing scopes of the bills, the courts interpreted the governmental interest differently. The Fifth Circuit held that protecting user speech was sufficiently valuable, while the Eleventh Circuit was unconvinced.

Are Social Media Platforms Common Carriers Limited by Users’ First Amendment Rights?

Relying on the common carrier doctrine, the Fifth Circuit determined that states have “the power to impose nondiscrimination obligations on communication and transportation providers that hold themselves out to serve all members of the public without individualized bargaining.”[29] By finding that social media platforms “are communications firms of tremendous public importance that . . . serve the public without individualized bargaining,” the court permitted the state to impose nondiscrimination regulations on the companies.[30]

Florida similarly argued that First Amendment scrutiny did not apply because social media platforms are common carriers, but the Eleventh Circuit disagreed with the classification for three reasons.[31] First, although social media is generally available to the public, users can only join after accepting the platform‘s terms of service, which counters the Fifth Circuit’s position that platforms do not engage in individualized bargaining. Second, the court applied Supreme Court precedent to suggest that because social media platforms “exercise editorial discretion” they differentiate from common carriers. And third, that the Telecommunications Act of 1996 explicitly distinguishes between interactive computer services and common carriers.[32] In doing so, the Eleventh Circuit held that laws that restrict content moderation decisions are subject to First Amendment scrutiny.[33]

The common carrier classification is yet another tension that the Supreme Court could resolve—essentially, whether social media platforms are so massive and publicly accessible that courts should treat them more as a public service than a private company.

Turning to the Supreme Court for Guidance.

The circuit split is ripe for Supreme Court review, and a ruling by the highest court would have substantial implications no matter the holding. At stake is a private company’s ability to control its own creation by regulating or restricting users who fail to conform to the platform’s vision. Alternatively, a government’s ability to safeguard disparate opinions in online forums could be threatened. Both could have significant consequences.

The Texas and Florida laws are similar in their intent to protect conservative voices online: the core of the circuit split revolves around social media platforms’ ability to regulate speech based on viewpoints the platforms find antithetical to their mission. A Supreme Court ruling would clear up several differences in perspective. Are social media restrictions content-based or content-neutral? Is content moderation analogous to speech and expression? Are social media companies protected under the First Amendment, or should they instead be classified as common carriers?

It is time for the Supreme Court to address the issues here. Social media and the First Amendment issues embodied therein are not going anywhere—and guidance is long overdue.

[1] NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 445 (5th Cir. 2022).

[2] NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196, 1200 (11th Cir. 2022).

[3] Tex. Bus. & Com. Code Ann. § 120.001-151; Tex. Civ. Prac. & Rem. Code Ann. §§ 143A.001-08 (West 2021).

[4] Civ. Prac. & Rem. § 143A.004.

[5] Id. § 143A.007-08.

[6] Paxton, 49 F.4th at 454.

[7] Id. at 452; see also CCIA (@ccianet), Twitter (Sept. 16, 2022, 3:35 PM), https://twitter.com/i/web/status/1570904109158481923 (Twitter statement of Matt Schruers, President of the Computer & Communications Industry Association) (“‘God bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same.”).

[8] See Tony Romm, Senate Republicans Renew Their Claims That Facebook, Google and Twitter Censor Conservatives, Wash. Post (Apr. 10, 2019, 6:10 PM), https://www.washingtonpost.com/technology/2019/04/10/facebook-google-twitter-under-fire-senate-republicans-censoring-conservatives-online/; but see Paul M. Barrett & J. Grant Sims, False Accusation: The Unfounded Claim That Social Media Companies Censor Conservatives, NYU Stern: Ctr. for Bus. & Hum. Rts. (Feb. 2021), https://static1.squarespace.com/static/5b6df958f8370af3217d4178/t/6011e68dec2c7013d3caf3cb/1611785871154/NYU+False+Accusation+report_FINAL.pdf. See also Mark Scott, Despite Cries of Censorship, Conservatives Dominate Social Media, Politico (Oct. 26, 2020, 7:55 PM), https://www.politico.com/news/2020/10/26/censorship-conservatives-social-media-432643; Emily A. Vogels, Andrew Perrin & Monica Anderson, Most Americans Think Social Media Sites Censor Political Viewpoints, Pew Research Ctr. (Aug. 19, 2020), https://www.pewresearch.org/internet/2020/08/19/most-americans-think-social-media-sites-censor-political-viewpoints/.

[9] NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196, 1203 (11th Cir. 2022).

[10] Fla. Stat. Ann. §§ 106.072, 501.2041 (West 2022).

[11] NetChoice, 34 F.4th at 1203.

[12] Id. at 1204.

[13] Id.

[14] News Release: Ron DeSantis, Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech, Fl. Gov. (May 24, 2021), https://www.flgov.com/2021/05/24/governor-ron-desantis-signs-bill-to-stop-the-censorship-of-floridians-by-big-tech/.

[15] NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 448 (5th Cir. 2022).

[16] Id. at 454-55.

[17] Id. at 455-56.

[18] Id. at 459.

[19] NetChoice v. Att’y Gen. of Fla., 34 F.4th 1196, 1210 (11th Cir. 2022).

[20] Id.; Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974).

[21] NetChoice, 34 F.4th at 1210.

[22] Id. at 1217.

[23] Id. at 1209, 1222.

[24] Id. at 1229.

[25] Id. at 1226-27, 1229.

[26] NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 489 (5th Cir. 2022).

[27] Id. at 480.

[28] Id. at 482-84.

[29] Id. at 469.

[30] Id. at 469, 473.

[31] NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196, 1220 (11th Cir. 2022).

[32] Id.

[33] Id. at 1210.