USCA11 Case: 21-12355
14
Date Filed: 05/23/2022
Opinion of the Court
Page: 14 of 67
21-12355
enjoin enforcement of §§ 106.072 and 501.2041 on a number of
grounds, including, as relevant here, that the law’s provisions
(1) violate the social-media companies’ right to free speech under
the First Amendment and (2) are preempted by federal law.
The district court granted NetChoice’s motion and preliminarily enjoined enforcement of §§ 106.072 and 501.2041 in their entirety. The court held that the provisions that impose liability for
platforms’ decisions to remove or deprioritize content are likely
preempted by 47 U.S.C. § 230(c)(2), which states that “[n]o provider or user of an interactive computer service shall be held liable
on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user
considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such
material is constitutionally protected.”
On NetChoice’s free-speech challenge, the district court
held that the Act’s provisions implicated the First Amendment because they restrict platforms’ constitutionally protected exercise of
“editorial judgment.” The court then applied strict First Amendment scrutiny because it concluded that some of the Act’s provisions were content-based and, more broadly, because it found that
the entire bill was motivated by the state’s viewpoint-based purpose to defend conservatives’ speech from perceived liberal “big
tech” bias: “This viewpoint-based motivation, without more, subjects the legislation to strict scrutiny, root and branch.” Doc. 113
at 23–26. The court held that the Act’s provisions “come nowhere
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