USCA11 Case: 21-12355
18
Date Filed: 05/23/2022
Opinion of the Court
Page: 18 of 67
21-12355
In assessing whether the Act likely violates the First Amendment, we must initially consider whether it triggers First Amendment scrutiny in the first place—i.e., whether it regulates “speech”
within the meaning of the Amendment at all. See Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6 F.4th 1247, 1254 (11th
Cir. 2021). In other words, we must determine whether social-media platforms engage in First-Amendment-protected activity. If
they do, we must then proceed to determine what level of scrutiny
applies and whether the Act’s provisions survive that scrutiny. See
Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11
F.4th 1266, 1291 (11th Cir. 2021) (“FLFNB II”).
For reasons we will explain in the balance of the opinion, we
hold as follows: (1) S.B. 7072 triggers First Amendment scrutiny
because it restricts social-media platforms’ exercise of editorial
judgment and requires them to make certain disclosures; (2) strict
scrutiny applies to some of the Act’s content-moderation restrictions while intermediate scrutiny applies to others; (3) the
Act’s disclosure provisions should be assessed under the standard
articulated in Zauderer v. Office of Disciplinary Counsel, 471 U.S.
626 (1985); (4) it is substantially likely that the Act’s content-moderation restrictions will not survive even intermediate scrutiny;
(5) it is also substantially likely that the requirement that platforms
provide a “thorough rationale” for each content-moderation decision will not survive under Zauderer; (6) it is not substantially
likely that the Act’s remaining disclosure provisions are unconstitutional; and (7) the preliminary-injunction factors favor enjoining
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