In The United States Court Of Appeals For The Eleventh Circuit
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 1 of 47No. 21-12355In the United States Court of Appealsfor the Eleventh CircuitNETCHOICE LLC, ET AL., Plaintiffs–Appellees,v.ATTORNEY GENERAL, STATE OF FLORIDA, ET AL., Defendants–Appellants.On Appeal from the United States District Courtfor the Northern District of FloridaNo. 4:21-CV-220-RH-MAFBRIEF OF AMICI CURIAE THE BABYLON BEE, LLC,AND NOT THE BEE, LLC, IN SUPPORT OFAPPELLANTS AND REVERSALKelly J. ShackelfordJeffrey C. MateerDavid J. HackerFIRST LIBERTY INSTITUTE2001 West Plano ParkwaySuite 1600Plano, TX 75075(972) 941-4444Jordan E. PrattChristine K. PrattFIRST LIBERTY INSTITUTE227 Pennsylvania Ave. SEWashington, D.C. 20003(972) 941-4444Counsel for Amici CuriaeSeptember 14, 2021
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 2 of 47NetChoice LLC et al. v. Attorney General,State of Florida, et al., 21-12355CERTIFICATE OF INTERESTED PERSONS ANDCORPORATE DISCLOSURE STATEMENTAmici Curiae certify that, in addition to those persons listed in the first-filedbrief’s certificate of interested persons, the following is a complete supplementallist of interested persons as required by Federal Rule of Appellate Procedure 26.1and Eleventh Circuit Rule 26.1:1. Dillon, Dan, Member of Amici Curiae2. Dillon, Seth, Member of Amici Curiae3. Ford, Adam, Member of Amici Curiae4. Hacker, David J., Attorney for Amici Curiae5. Mann, Kyle, Member of Amicus Curiae The Babylon Bee, LLC6. Mateer, Jeffrey C., Attorney for Amici Curiae7. Not the Bee, LLC, Amicus Curiae8. Pratt, Christine K., Attorney for Amici Curiae9. Pratt, Jordan E., Attorney for Amici Curiae10. Shackelford, Kelly J., Attorney for Amici Curiae11. The Babylon Bee, LLC, Amicus CuriaeAs required by Federal Rule of Appellate Procedure 26.1 and EleventhCircuit Rule 26.1, Amici Curiae certify that, apart from undisclosed members ofAppellees, no publicly traded company or corporation has an interest in theC-1 of 2
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 3 of 47outcome of this case or appeal. Amici Curiae further certify that they have noparent corporation, and no publicly held corporation owns 10% or more of theirstock.Dated: September 14, 2021Respectfully submitted,/s/Jordan E. PrattKelly J. ShackelfordJeffrey C. MateerDavid J. HackerFIRST LIBERTY INSTITUTE2001 West Plano ParkwaySuite 1600Plano, TX 75075(972) 941-4444Jordan E. Pratt*Florida Bar #Christine K. Pratt* **Florida Bar #FIRST LIBERTY INSTITUTE227 Pennsylvania Ave. SEWashington, DC 20003(972) 941-4444Counsel for Amici Curiae TheBabylon Bee, LLC, and Not the Bee,LLC* Not yet admitted to the District ofColumbia Bar. Practicing law in the Districtof Columbia pursuant to D.C. Court ofAppeals Rule 49(c)(8) under the supervisionof an attorney admitted to the District ofColumbia Bar.** Application for admission pending.C-2 of 2
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 4 of 47TABLE OF CONTENTSCERTIFICATE OF INTERESTED PERSONS AND CORPORATEDISCLOSURE STATEMENT . C1TABLE OF CITATIONS . iiIDENTITY AND INTEREST OF AMICI CURIAE . 1STATEMENT OF THE ISSUES. 3SUMMARY OF THE ARGUMENT . 4ARGUMENT .5I.Social Media Platforms Do Not Function as the Good-Faith,Neutral Content Hosts that Section 230 Envisions, and Florida’sLaw Is Facially Consistent with Section 230’s Immunity . 5II.Because Social Media Platforms Act Like Common Carriers ofCommunications, Florida’s Law Does Not Facially Violate theFirst Amendment .20III.Florida’s Law Promotes the Free Exchange of Ideas and ProtectsReligious Viewpoints from Censorship .27IV.Florida’s Law Protects Both the Public and Social Media Platformsfrom Censorship Pressure by the Government .30CONCLUSION .33CERTIFICATE OF COMPLIANCE .34CERTIFICATE OF SERVICE .35i
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 5 of 47TABLE OF CITATIONSCASESAbrams v. United States,250 U.S. 616 (1919) .30Americans for Prosperity Found. v. Bonta,141 S. Ct. 2373 (2021) .25*Anderson v. Edwards,514 U.S. 143 (1995) .20Arizona v. United States,567 U.S. 387 (2012) .20*Biden v. Knight First Amendment Institute at Columbia Univ.,141 S. Ct. 1220 (2021) .23, 24, 25, 26In re Wild,994 F.3d 1244 (11th Cir. 2021) .17Obergefell v. Hodges,576 U.S. 644 (2015) .27Packingham v. North Carolina,137 S. Ct. 1730 (2017) .21, 22Reed v. Town of Gilbert,576 U.S. 155 (2015) .31Reno v. ACLU,521 U.S. 844 (1997) .22Siegel v. LePore,234 F.3d 1163 (11th Cir. 2000) .3United States v. Stevens,559 U.S. 460 (2010) .25ii
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 6 of 47CONSTITUTIONAL PROVISIONSU.S. Const. art. I, § 7.17U.S. Const. amend. I . passimSTATUTORY PROVISIONS47 U.S.C. § 230 . passim47 U.S.C. § 230(a)(2) .5, 2447 U.S.C. § 230(a)(3) .5, 3047 U.S.C. § 230(c)(1) .1747 U.S.C. § 230(c)(2) .1747 U.S.C. § 230(c)(2)(A) .5, 18Fla. Stat. § 501.2041(2)(h) .19Fla. Stat. § 501.2041(6).1Florida Senate Bill 7072 .2, 3, 4OTHER CITED SOURCESAGAIN! Facebook censors and penalizes The Babylon Bee for the mostridiculous article ever, Not the Bee, ry-ever .11Antifa group openly hopes that Biden is the last U.S. president EVER andpromotes inauguration-day violence, but is still allowed on Twitter. ,Not the Bee, owed-on-twitter-.13iii
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 7 of 47Babylon Bee CEO posted this to Instagram and they’re now threatening toban him for “harmful false information” and “hate speech.” WHAT?,Not the Bee, r-symbols-what.12Melissa Barnhart, Youtube restores John Piper’s ‘Coronavirus and Christ’audiobook after ‘violation’ ban, Christian -after-violation-ban.html (May 19,2020) .28Best of 2020: A History of Violent Protest, -effective-protest (Dec. 24, 2020) .12Black’s Law Dictionary (8th ed. 2004) .18Check out this profoundly racist tweet from a college professor that Twitterallows for some reason, Not the Bee, son . 9Church Members Worshiping At Home Could Get Used To This MuteFeature, The Babylon Bee, nd(Apr. 17, 2020).22Joe Concha, Hypocritical Psaki leads chilling effort to flag‘misinformation’, The Hill, ormation (July 18, 2021) .31Corrections: June 12, 2021, N.Y. us/corrections-june-122021.html (June 11, 2021) .8, 14Sean Dennison, How Much Is Facebook Worth?, money/business/how-much-is-facebookworth/ (Aug. 19, 2021) .26iv
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 8 of 47Seth Dillon, How The Babylon Bee Is Fighting Back, National the-babylon-bee-isfighting-back/ (July 3, 2021) .14Facebook, in all its wisdom and glory, will finally allow you to have anopinion on the origin of Covid-19. Thanks, Facebook!, Not the ok .7Facebook rejects police group’s Officer of the Year ad, Not the itive-social-issues- .7Facebook whistleblowers say company is censoring “vaccine hesitant”content without users’ knowledge but I’m sure it’s for our own good, Notthe Bee, posts-or-news-about-covid-19-vaccines .7Brian Flood, Babylon Bee CEO says satirical site ‘punching back’ againstliberal media, Big Tech censorship, Fox -punching-backagainst-censorship (June 29, 2021).14Aris Folley, Facebook temporarily banned evangelist Franklin Grahamfrom site, The Hill, rom-site (Dec.29, 2018) .28Former Twitter CEO says he’ll “happily” watch as capitalists are lined upand shot, Not the Bee, and-shot .7, 11Michael R. Gordon & Warren P. Strobel, New U.S. Intelligence ReportDoesn’t Provide Definitive Conclusion on Covid-19 Origins, Wall StreetJournal, -how-to-deal-with-china11629825758 (Aug. 24, 2021) .11v
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 9 of 47Jennifer Graham, Is Facebook censoring the Babylon Bee, or does MarkZuckerberg just not get the jokes?, Deseret k-zuckerberg-just-not-get-jokesconservatives (Aug. 23, 2021) .15Jeff Horowitz, Facebook Says Its Rules Apply to All. Company DocumentsReveal a Secret Elite That’s Exempt., Wall Street s-xcheck-zuckerberg-eliterules-11631541353 (Sept. 13, 2021) witters-suppression-of-prolife-speech-must-stop .29Rebecca Klar, Feds step up pressure on social media over false COVID-19claims, The Hill, -covid-19 (July18, 2021) .31Least masculine society in human history decides masculinity is a growingthreat, The Babylon Bee, -threat .15Brenna Lewis, Instagram Just Censored this Pro-Life Post, Students for Lifeof America, ustcensored-this-pro-life-post/ (June 4, 2021).29Brenna Lewis, TikTok Censors Students for Life, Then Reinstates VideoWithout Explanation, -explanation/ (Apr.14, 2020) .29Merriam-Webster.com, Hate, https://www.merriamwebster.com/dictionary/hate .9Andrea Morris, Instagram Censors Worship Leader’s Praise Post, LabelingHis Faith ‘False and Harmful’, CBN -his-faith-false-and-harmful (June 24, 2020) .28vi
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 10 of 47Oops, looks like Twitter forgot to ban Slate for promoting violence, Not theBee, ter-forgot-to-banslate-for-promoting-violence .13Press Release, Susan B. Anthony List, n-another-pro-life-ad (Nov. 1, 2018) .29Priorities: Twitter says Taliban terrorists can post propaganda on platformwhile Donald Trump remains banned, Not the -still-allowed-to-maintain-its-account .6, 19Quick! Check to see if Instagram is forcing you to follow The White Houseaccount!, Not the Bee, e-account .7John Wesley Reid, A Double Standard? Unpacking Twitter’s Pro-Life AdBan, CBN News, ndard-unpacking-twitters-pro-life-ad-ban (June 29, 2017) .29Kevin Robillard, Twitter pulls Blackburn Senate ad deemed ‘inflammatory’,Politico, lackburntwitter-ad-243607 (Oct. 9, 2017) .29Lila Rose, Twitter’s suppression of pro-life speech must stop, The anned-tiktok-app/ (Oct. 18,2017) .29Madeline Roth, NY Times Corrects Story After Legal Threat, AdmitsBabylon Bee Is ‘Satirical Website’ and Not ‘Misinformation’, -story-legal001112181.html (June 14, 2021) .8, 14Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175(1989) .8Slate, Facebook.com, 0158732609846438/ (Dec. 24, 2020).12, 13vii
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 11 of 47Slate, 15955937513473?s 20 (June 4,2020) .13Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact inOriginal Meaning, 91 Notre Dame L. Rev. 1 (2015) .9Anagha Srikanth, Twitter suspends account of Chinese virologist whoclaimed coronavirus was made in lab, The -of-chinese-virologist.10Twitter dropped the banhammer on a Christian magazine for this “hateful”sentence, Not the Bee, son-the-family-magazine-for-this-hateful-sentence .28Twitter’s Jack Dorsey caught red-handed saying something true: “We arefocused on one account right now, but this is going to be much biggerthan just one account”, Not the -to-be-much-bigger-than-just-one-account .7Twitter says calling the Syrian Muslim CO shooter a “white Christianterrorist” does not violate its policies on misinformation or hate, Not theBee, ion-or-hate .6Twitter suspended a Spanish politician for tweeting “A man cannot getpregnant. A man has no womb or eggs.”, Not the t-pregnant-a-man-has-no-womb-or-eggs .6, 9What is The Babylon Bee?, The Babylon Bee, https://babylonbee.com/about .8Joseph Wulfsohn, Liberal site Slate faces backlash for saying ‘violence’ isan ‘important tool for protests’, Fox violence-is-an-importanttool-for-protests (June 4, 2020) .13viii
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 12 of 47You know who doesn’t get blocked on Twitter for spreading misinformationabout Covid? The Chinese Communist Party, Not the tion-about-covid-the-chinesecommunist-party .6, 10ix
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 13 of 47IDENTITY AND INTEREST OF AMICI CURIAE 1The Babylon Bee, LLC, is a Christian satire website that sheds light on faith,politics, and culture through humor and parody. Not the Bee, LLC, is a Christiannews website that runs entirely accurate headlines one might expect to find in TheBee. The Bee’s and Not the Bee’s headlines highlight, among other things, socialmedia platforms’ viewpoint-based censorship of conservative groups, conservativeleaders, and their own satire.As a Florida limited liability company that not only documents social mediacensorship but suffers from it, The Bee has a direct interest in the outcome of thisappeal. The Bee believes that the censorship and shadow banning it experiencesfrom social media platforms would give rise to a cause of action under the law atissue in this appeal, section 501.2041(6), Florida Statutes. And that means The Beemight be entitled to a good deal of money, which would help keep the lights on andthe satire servers running, not to mention remedy its injuries. Because Not theBee’s success relies almost entirely on The Bee’s, and because social media1Counsel for Amici Curiae authored this brief in its entirety. No party’scounsel authored this brief, in whole or in part, or contributed money that wasintended to fund the preparation or submission of this brief. No person—other thanAmici Curiae, their members, or their counsel—contributed money that wasintended to fund the preparation or submission of this brief. Counsel for all partieshave consented to the filing of this brief. Thus, Amici Curiae have authority to filethis brief. See Fed. R. App. P. 29(a)(2).1
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 14 of 47platforms’ censorship and shadow-banning of The Bee have hampered Internettraffic to its site, Not the Bee likewise has an interest in this appeal.Amici also have a more altruistic interest in the outcome of this appeal: adesire for an intellectually diverse social media universe in which all Americans—including those of the religious center-right—have an equal platform to advocatetheir views. At a minimum, Amici want social media platforms to transparentlyannounce and evenhandedly apply their content standards, as Florida’s Senate Bill7072 requires them to do.2
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 15 of 47STATEMENT OF THE ISSUESThis appeal comes to this Court in the posture of a grant of a preliminaryinjunction, which this Court reviews according to a four-pronged test. See Siegel v.LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). As to the first prong—theplaintiffs’ likelihood of success on the merits—this appeal presents two issues:1. Whether the various and severable provisions of Florida’s recentlyenacted law, Senate Bill 7072, are facially consistent with section 230 of theCommunications Decency Act of 1996; and2. Whether the various and severable provisions of Senate Bill 7072 arefacially consistent with the First Amendment to the United States Constitution.3
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 16 of 47SUMMARY OF THE ARGUMENTSocial media platforms present themselves as a service open to the generalpublic. They represent that they host third-party speech according to objectivelyadministered standards; their user agreements do not disclose that they willunevenly enforce their standards against disfavored viewpoints or speakers.Florida’s recently enacted consumer-protection law, Senate Bill 7072, keeps socialmedia platforms accountable to the image of neutrality that they project. Its modestprovisions do not dictate the screening and removal standards that platforms shouldadopt. Rather, the law requires merely that platforms disclose—and evenhandedlyapply—the standards that they voluntarily choose.The accountability that S.B. 7072 requires is sorely needed. As Amici havedocumented—and personally experienced—social media platforms systematicallytarget conservative users and messages for censorship, selectively invoking vaguepolicies against “hate” and “misinformation” to stunt the free flow of informationand silence conservative voices. The examples are legion, and they are egregious.Under the plain text of section 230 of the Communications Decency Act, this badfaith conduct does not qualify for civil immunity. Nor does it find sanctuary withinthe First Amendment’s protections, especially given how social media platformshold themselves out to the general public. In sum, S.B. 7072 is a facially valid4
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 17 of 47exercise of the State of Florida’s authority to protect the public from deceptivecorporate conduct.Florida’s law isn’t just facially consistent with section 230 and the FirstAmendment; it advances their core purposes. It does so by fostering the free flowof information over the Internet, and by ensuring that all viewpoints—includingconservative and religious ones—receive equal treatment under the standards thatplatforms choose to adopt. Florida’s law also protects both the public and socialmedia platforms themselves from improper governmental pressure to circumventthe First Amendment. It does so by requiring consistency in content screening andremoval, thus giving social media platforms a basis to refuse governmentaldemands to target viewpoints and messages that the government disfavors.ARGUMENTI.Social Media Platforms Do Not Function as the Good-Faith, NeutralContent Hosts that Section 230 Envisions, and Florida’s Law IsFacially Consistent with Section 230’s Immunity.A. When Congress enacted the Communications Decency Act, it envisionedan Internet that “offer[s] a forum for a true diversity of political discourse, uniqueopportunities for cultural development, and myriad avenues for intellectualactivity.” 47 U.S.C. § 230(a)(3). It contemplated an Internet where users enjoy “agreat degree of control over the information they receive.” Id. § 230(a)(2). And it5
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 18 of 47believed the Internet was a place where platforms host users’ content according tostandards that they evenhandedly enforce in “good faith.” Id. § 230(c)(2)(A).While this was the online world that Congress perceived in 1996, it’s not theone that we virtually inhabit today. Consider the following ten headlines, whichmight prompt Hamlet to ask life’s most fundamental question in the modern age:The Bee, or Not the Bee? “Priorities: Twitter says Taliban terrorists can post propaganda on platformwhile Donald Trump remains banned.” 2 “Twitter suspended a Spanish politician for tweeting ‘A man cannot getpregnant. A man has no womb or eggs.’”3 “Twitter says calling the Syrian Muslim CO shooter a ‘white Christianterrorist’ does not violate its policies on misinformation or hate.” 4 “You know who doesn’t get blocked on Twitter for spreadingmisinformation about Covid? The Chinese Communist Party.”52Available at ll-allowed-to-maintain-its-account (lastvisited Sept. 12, 2021).3Available at egnant-a-man-has-no-womb-or-eggs(last visited Sept. 12, 2021).4Available at ion-or-hate (last visited Sept. 12, 2021).5Available at -about-covid-the-chinesecommunist-party (last visited Sept. 12, 2021).6
USCA11 Case: 21-12355Date Filed: 09/14/2021Page: 19 of 47 “Former Twitter CEO says he’ll ‘happily’ watch as capitalists are lined upand shot.”6 “Twitter’s Jack Dorsey caught red-handed saying something true: ‘We arefocused on one account right now, but this is going to be much bigger thanjust one account.’”7 “Facebook rejects police group’s Officer of the Year ad.”8 “Facebook whistleblowers say company is censoring ‘vaccine hesitant’content without users’ knowledge but I’m sure it’s for our own good.” 9 “Facebook, in all its wisdom and glory, will finally allow you to have anopinion on the origin of Covid-19. Thanks, Facebook!” 10 “Quick! Check to see if Instagram is forcing you to follow The White Houseaccount!” 116Available at and-shot (last visited Sept. 12, 2021).7Available at be-much-bigger-than-just-one-account (last visited Sept. 12, 2021).8Available at ice
6. Mateer, Jeffrey C., Attorney for Amici Curiae 7. Not the Bee, LLC, Amicus Curiae 8. Pratt, Christine K., Attorney for Amici Curiae 9. Pratt, Jordan E., Attorney for Amici Curiae 10. Shackelford, Kelly J., Attorney for Amici Curiae 11. The Babylon Bee, LLC, Amicus Curiae As required by Federal Rule of Appellate Procedure 26.1 and Eleventh
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