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On May 23, 2022, the United States Court of Appeals for the Eleventh Circuit decided NetChoice, LLC vs. Att’y Gen., Florida, 2022 WL 1613291 (11th Cir. May 23, 2022), in which the court ruled that most of the provisions of Florida SB 7072 – a law aimed at prohibiting social media platforms, such as Twitter and Facebook, from censoring certain speech – were substantially likely to violate the platforms’ First Amendment free speech rights. Although the law was intended to protect First Amendment rights, that is, to protect certain speech from censorship of social media platforms, the Eleventh Circuit determined that the law itself violated the First Amendment by restricting the right of social media platforms to censor and moderate as much as possible. platforms have seen fit. This type of content moderation, the court found, is constitutionally protected “editorial judgment.” The court also ruled that social media platforms are not “common carriers” with diminished First Amendment rights. In doing so, the Eleventh Circuit created a Circuit Division, deviating from the decision of the United States Court of Appeals for the Fifth Circuit (just twelve days earlier, May 11, 2022) to allow the application of Texas HB 20 substantially similar. It seems likely that the Supreme Court will eventually step in and provide guidance on how the First Amendment should be applied to these laws.
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