What is a “Social Media Platform”?–NetChoice v. Uthmeier

This is the post-SCOTUS remand of Moody v. NetChoice. To dispose of various motions, the court must construe the statutory term “social media platform.” Florida’s statutory definition:

“Social media platform” means any information service, system, Internet search engine, or access software provider that:

1. Provides or enables computer access by multiple users to a computer server, including an Internet platform or a social media site;

2. Operates as a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity;

3. Does business in the state; and

4. Satisfies at least one of the following thresholds:

a. Has annual gross revenues in excess of $100 million, as adjusted in January of each odd-numbered year to reflect any increase in the Consumer Price Index.

b. Has at least 100 million monthly individual platform participants globally.

To me, this definition essentially means every website doing business in Florida (also a vague standard) with more than $100M/annual revenue or 100M “monthly individual platform participants” (whatever that means). In other words, despite the “social media platform” framing, this definition isn’t limited to “user-generated content” services or “social media,” though other parts of the statute may narrow the scope.

(For more about the problems with the numerical threshholds, see this piece).

The court recognizes this drafting flaw:

the text of the “social media platform” definition is broad. On any fair reading, almost any facility or application allowing multiple users to communicate with a given entity over the internet is an “information service.” This extends well beyond traditional social-media providers

However, this overbroad definition flummoxes the court because of the mismatch between the statutory definition and the applicable restrictions:

the primary targets of the statutes’ substantive provisions are traditional
social-media providers. Many of the provisions make sense only when applied in that context. And the formally adopted legislative findings also focus on social media….The defined term “social media platform” would commonly be understood to refer to traditional social-media providers, not the broader array of entities that the language of the statutory definition encompasses when viewed in isolation.

I mean, this is what happens when a legislature passes a messaging bill that was never a serious proposal, that was not drafted properly, and that was never designed to actually pass. It follows no logic and makes no sense.

Faced with this dilemma–does the legislature mean what it wrote or what it now claims it intended?–the court sides with the statutory text and its massively overbroad definition. The court notes how the language traces back to definitions in Section 230, which broadly “extends to any system that allows multiple users access to or over the internet.” Noting that the Florida legislature clearly marked up the Section 230 definition as its starting point:

The markup did nothing to narrow the definition in any relevant respect. Quite the contrary. The drafters added “search engine” to the terms “information service, system, or access software provider,” and otherwise left those terms alone. A traditional social-media provider would not typically be called a search engine, so the drafters’ addition of that term indicates the definition was intended to apply more broadly than just to traditional social-media providers….

The inescapable fact is that the adopted language derived from § 230(f)(2). When context and all appropriate considerations are factored in, the adopted definition still means what it says.

The court doesn’t provide a precise interpretation of the definition. Instead, it concludes: “both § 230(f)(2) and Florida Statutes § 501.2041(1)(g) apply not just to traditional social-media providers but also to a wide variety of other applications that provide multiple users access to or over the internet.”

This is not the first time that legislatures have struggled to define “social media.” See my deeper dive on this issue from 2016. My least-favorite example definition remains California Labor Code 980, which defines social media as all electronic data, online and off. What? Offline data is the opposite of “social.”

As I’ve explained before, the difficulties defining “social media” pervade every attempt to regulate it. In my view, it is impossible to define social media as a subset of the broader category of user-generated content services. They are the same thing. Sometimes legislatures mean to regulate the broader category of UGC. If they don’t, then any attempts to narrow the definitional scope will fail. As my old maxim goes, if you can’t define it, you can’t regulate it.

* * *

The opinion covers other important ground. Florida keeps making mockable arguments that the judge keeps swatting down. For example, Florida argued that it didn’t intend to imminently enforce all of the law. Baffled by the argument, the court notes (emphasis added):

The defendants also note that Florida Statutes §§ 501.2041(9) and 106.072(5) say the Florida provisions cannot be enforced to the extent inconsistent with federal law and 47 U.S.C. § 230(e)(3). But this does not solve the problem. If the state correctly understood the First Amendment and § 230, some of the Florida provisions would not have been adopted at all.

💥

Florida also argued that plaintiffs can’t sue for deprivation of their rights because Section 230 already provides a comprehensive enforcement scheme (or, more accurately, a non-enforcement scheme). If this confuses you, you’re not alone. The court isn’t having any of it:

Suppose a state passed a statute saying a social-media provider could be held liable for damages based on any defamatory material posted on its site—precisely the result § 230 was enacted to prohibit—and that each posting of defamatory material would result in a substantial fine levied against the provider, regardless of whether the provider was even aware of the defamatory material. Any assertion that a provider who hosted millions of postings each day could not seek prospective relief under § 1983 or equitable principles would be, in the language of Moms for Liberty, borderline frivolous. Or perhaps not just borderline

I’ll take any excuse to highlight Madonna’s song–the iconic video was truly a zenith of 1980’s fashion “sensibilities.”

The court also gets into the statute’s restrictions for handling content “posted by or about a user” who is known by the platform to be a candidate for office. The court says:

The statute does not define “about” a candidate. On its face, § 501.2041(2)(h) may suggest a post by or about a candidate must always go to the top of every other user’s feed unless a person—not an algorithm—says otherwise. But even placing the post at the top meets the literal definition of post-prioritization, thus prohibiting that placement, too. And if the statute requires placement of all a candidate’s posts at the top, a candidate would apparently have a statutory right to flood the zone, making it difficult or impossible for users to receive their preferred content. The Legislature could not have intended this. But if the provision cannot or will not be applied literally, a social media platform is left with no way to determine what the provision really requires.

The defendants have not attempted to explain what these provisions really mean or how they would be applied. Nor have the defendants offered any theory under which a state can preclude this kind of curating without violating the First Amendment.

The opinion does take a weird turn when the court says, without any citations:

surely a state can prohibit taking down a candidate’s access to the internet—closing the candidate’s account with an internet service provider—on the eve of an election, at least without a legitimate basis for doing so. A legitimate basis for doing so might include failure to pay for the service or introduction of malware but probably not political opposition to the candidate. Similarly, it seems likely that a state can prohibit an email or text provider who consistently transmits messages without curation from attaching the provider’s own unfavorable comments to a candidate’s messages in the run-up to an election.

I ban my students from using the term “ISP” because I’m not sure what it means. Is the court here saying that IAPs can’t ban political subscribers or add their own political messages to emails because they are common carriers? I’m not sure that’s a correct characterization of the law, but the court is working without a net here and it shows.

Despite that weird turn at the end, this is another strong opinion from Judge Hinkle in the Northern District of Florida.

Case Citation: NetChoice, LLC v. Uthmeier, 4:21-cv-00220-RH-MAF (N.D. Fla. May 22, 2025).