NetChoice, LLC, dba NetChoice, et al. v. Ashley Moody, Attorney General of Florida, et al.

Florida’s Senate Bill 7072 imposes unprecedented restrictions on the rights of private Internet companies to exercise editorial judgment over the content on their services. Responding to an alleged conspiracy by “‘big tech’ oligarchs in Silicon Valley” to silence “conservative” content, S.B. 7072 singles out a select group of private companies and saddles them— and only them—with a slew of content-based and discriminatory requirements. The law openly abridges the targeted companies’ First Amendment right to exercise editorial judgment over what content to disseminate on their websites via requirements that are speaker-based, content-based, and viewpointdiscriminatory. Those mandates are designed to work hand-in-glove with burdensome disclosure obligations that compel speech, interfere with editorial discretion, and facilitate enforcement of the substantive mandates by, for example, requiring companies to disclose their policies and explain their decisions. In a detailed opinion that explained the law’s many flaws, the Eleventh Circuit unanimously concluded that most of S.B. 7072 cannot be reconciled with the First Amendment. But it then left a subset of the law’s compelled disclosure provisions standing, based on a cursory analysis that side-stepped the law’s pervasive viewpoint-discrimination, while overextending and misapplying Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). The question presented is: Whether S.B. 7072 in its entirety, and its compelled disclosure provisions in particular, comply with the First Amendment.