[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-12355 ____________________ NETCHOICE, LLC, d.b.a. NetChoice, COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION, d.b.a. CCIA, Plaintiffs-Appellees, versus ATTORNEY GENERAL, STATE OF FLORIDA, in their official capacity, JONI ALEXIS POITIER, in her official capacity as Commissioner of the Florida Elections Commission, JASON TODD ALLEN, in his official capacity as Commissioner of USCA11 Case: 21-12355 Date Filed: 05/23/2022 Page: 2 of 67

2 Opinion of the Court 21-12355 the Florida Elections Commission, JOHN MARTIN HAYES, in his official capacity as Commissioner of the Florida Elections Commission, KYMBERLEE CURRY SMITH, in her official capacity as Commissioner of Florida Elections Commission, DEPUTY SECRETARY OF BUSINESS OPERATIONS OF THE FLORIDA DEPARTMENT OF MANAGEMENT SERVICES, in their official capacity,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:21-cv-00220-RH-MAF ____________________ Before NEWSOM, TJOFLAT, and ED CARNES, Circuit Judges. NEWSOM, Circuit Judge: Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube, or Tik- Tok. But “whatever the challenges of applying the Constitution to USCA11 Case: 21-12355 Date Filed: 05/23/2022 Page: 3 of 67

21-12355 Opinion of the Court 3 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 ap- pears.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011) (quo- tation 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 pri- vate actors.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019). Put simply, with minor exceptions, the govern- ment 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 Face- books and Twitters of the world—indisputably “private actors” with First Amendment rights—are engaged in constitutionally pro- tected expressive activity when they moderate and curate the con- tent 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 so- cial-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. USCA11 Case: 21-12355 Date Filed: 05/23/2022 Page: 4 of 67

4 Opinion of the Court 21-12355

We hold that it is substantially likely that social-media com- panies—even the biggest ones—are “private actors” whose rights the First Amendment protects, Manhattan Cmty., 139 S. Ct. at 1926, that their so-called “content-moderation” decisions consti- tute protected exercises of editorial judgment, and that the provi- sions of the new Florida law that restrict large platforms’ ability