USCA11 Case: 21-12355
21-12355
Date Filed: 05/23/2022
Opinion of the Court
Page: 3 of 67
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ever-advancing technology, the basic principles of freedom of
speech and the press, like the First Amendment’s command, do not
vary when a new and different medium for communication appears.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011) (quotation marks omitted). One of those “basic principles”—indeed,
the most basic of the basic—is that “[t]he Free Speech Clause of the
First Amendment constrains governmental actors and protects private actors.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct.
1921, 1926 (2019). Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say
it.
The question at the core of this appeal is whether the Facebooks and Twitters of the world—indisputably “private actors”
with First Amendment rights—are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida
insists that they aren’t, and it has enacted a first-of-its-kind law to
combat what some of its proponents perceive to be a concerted
effort by “the ‘big tech’ oligarchs in Silicon Valley” to “silenc[e]”
“conservative” speech in favor of a “radical leftist” agenda. To that
end, the new law would, among other things, prohibit certain social-media companies from “deplatforming” political candidates
under any circumstances, prioritizing or deprioritizing any post or
message “by or about” a candidate, and, more broadly, removing
anything posted by a “journalistic enterprise” based on its content.