Amicus Curiae Brief — Ashley Moody, Attorney General of Florida, et al., Petitioners v. NetChoice, LLC, dba NetChoice, et al.
Supreme Court briefOct 21, 2022
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No. 22-277
In the Supreme Court of the United States
_______________________________________________________________________________________________________________
ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA,
ET AL.,
Petitioners,
v.
NETCHOICE, LLC, ET AL.,
Respondents.
_______________________________________________________________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
_______________________________________________________________________________________________________________
BRIEF OF AMICI CURIAE STATES OF
OHIO, ALABAMA, ALASKA, ARIZONA,
ARKANSAS, IDAHO, IOWA, KENTUCKY,
MISSISSIPPI, MISSOURI, MONTANA,
NEBRASKA, SOUTH CAROLINA, TENNESSEE,
TEXAS, AND UTAH IN SUPPORT OF
PETITIONERS
_______________________________________________________________________________________________________________
DAVE YOST
Ohio Attorney General
CHARLES MILLER
Deputy Attorney General
30 E. Broad St., 17th Fl.
Columbus, Ohio 43215
BENJAMIN M. FLOWERS*
*Counsel of Record
Ohio Solicitor General
MICHAEL J. HENDERSHOT
Chief Deputy Solicitor General
30 E. Broad St., 17th Fl.
Columbus, Ohio 43215
614-466-8980
bflowers@OhioAGO.gov
Counsel for Amicus Curiae State of Ohio
(additional counsel listed at the end of the brief)
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................ii
STATEMENT OF AMICI INTEREST ....................... 1
SUMMARY OF ARGUMENT .................................... 3
ARGUMENT ............................................................... 4
I. Social-media companies regularly engage
in censorship that impoverishes the free
exchange of ideas. ............................................ 4
II. The States need guidance regarding what
they can do to promote the free exchange
of ideas on social-media platforms. ............... 10
A. Most state legislatures have enacted or
proposed laws regulating censorship by
social-media entities. ................................ 11
B. The States may constitutionally
regulate censorship on social-media
platforms. .................................................. 13
CONCLUSION.......................................................... 24
ii
TABLE OF AUTHORITIES
Cases
Page(s)
Biden v. Knight First Amend. Inst. At
Columbia Univ.,
141 S. Ct. 1220 (2021) ....................... 14, 16, 20, 22
Carpenter v. United States,
138 S. Ct. 2206 (2018) ......................................... 15
Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc.,
473 U.S. 788 (1985) ............................................... 2
Crawford v. Marion County Election
Bd.,
553 U.S. 181 (2008) ............................................... 6
FCC v. League of Women Voters of
California,
468 U.S. 364 (1984) ............................................. 22
Hurley v. Irish-American Gay, Lesbian
and Bisexual Group of Boston,
515 U.S. 557 (1995) ............................................. 18
Janus v. Am. Fed’n of State, Cnty., &
Mun. Emps., Council 31,
138 S. Ct. 2448 (2018) ......................................... 17
Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952) ............................................. 15
Kyllo v. United States,
533 U.S. 27 (2001) ............................................... 15
iii
Marsh v. Alabama,
326 U.S. 501 (1946) ....................................... 14, 23
Messenger v. Pennsylvania R. Co.,
37 N.J.L. 531 (1874) ............................................ 21
Miami Herald Publishing Co. v.
Tornillo,
418 U.S. 241 (1974) ............................. 3, 14, 18, 19
Missouri v. McNeely,
569 U.S. 141 (2013) ............................................. 15
N. Y. State Rifle & Pistol Ass’n, Inc. v.
Bruen,
142 S. Ct. 2111 (2022) ......................................... 14
Nat’l Broad. Co. v. United States,
319 U.S. 190 (1943) ............................................. 15
NetChoice, LLC v. Paxton,
— F.4th —, 2022 WL 4285917, No.
21-51178 (5th Cir., Sept. 16, 2022)
................. 2, 4, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23
NetChoice, LLC v. Paxton,
142 S. Ct. 1715 (2022) ......................................... 13
Pacific Gas & Elec. Co. v. Public
Utilities Comm’n of Cal.,
475 U.S. 1 (1986) ................................................. 18
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) ................................. 1, 4, 15
PruneYard Shopping Ctr. v. Robins,
447 U.S. 74 (1980) ..................................... 3, 18, 20
iv
Riley v. California,
573 U.S. 373 (2014) ....................................... 14, 15
Riley v. Nat’l Fed’n of the Blind of N.
Carolina, Inc.,
487 U.S. 781 (1988) ............................................. 17
Rumsfeld v. Forum for Academic and
Institutional Rights, Inc.,
547 U.S. 47 (2006) ............................................... 18
Turner Broad. Sys., Inc. v. FCC,
520 U.S. 180 (1997) ............................................. 15
Turner Broadcasting Sys., Inc. v. FCC,
512 U.S. 622 (1994) ....................................... 15, 16
United States v. Jones,
565 U.S. 400 (2012) ............................................. 15
United States v. Virginia,
518 U.S. 515 (1996) ............................................... 2
State ex rel. Webster v. Nebraska
Telephone Co.,
17 Neb. 126 (1885) ............................................... 21
Whole Woman’s Health v. Paxton,
10 F.4th 430 (5th Cir. 2021) (en
banc) ....................................................................... 2
Statutes and Rules
47 U.S.C. §230 ........................................................... 19
Fla. Stat. Ann. §501.2041 ......................................... 11
v
Iowa General Assembly, S.F. 580
(introduced March 16, 2021) ............................... 11
Missouri H.B. 482 (introduced Dec. 14,
2020)..................................................................... 12
N.Y. Gen. Bus. Law. §394-ccc (eff. Dec.
3, 2022)................................................................. 13
New Hampshire H.B. 133 (introduced
Jan. 4, 2021) ........................................................ 12
Ohio Gen. Assembly, H.B. 441
(introduced Oct. 6, 2021) ..................................... 11
Oklahoma Legislature, S.B. 383
(introduced Feb. 1, 2021)..................................... 11
Sup. Ct. Rule 37.2 ....................................................... 1
Telegraph Lines Act, 25 Stat. 382 (1888) ................ 21
Tx. Civ. Prac. & Rem. Code §143A.002 .................... 11
Other Authorities
Ahiza García-Hodges, Big Tech has big
power over online speech. Should it
be reined in?, NBC News (Jan. 21,
2021)................................................................. 4, 10
AP, YouTube suspends Rand Paul after
misleading video on masks, PBS
News Hour (Aug. 11, 2021) ................................... 5
vi
Apoorva Mandavilli, The C.D.C.
concedes that cloth masks do not
protect against the virus as effectively
as other masks., N.Y. Times (Jan 14,
2022)....................................................................... 5
Attachment to Joint Statement on
Discovery Disputes, Missouri v.
Biden, 3:22-cv-01213, No. 71-3 (Aug.
31, 2022, W.D. La.) ................................................ 9
Bill Baier & Caitlin Chin, Addressing
Big Tech’s power over speech,
Brookings Institute (June 1, 2021) ................. 7, 10
Brent Skorup & Joseph Kane, The FCC
and Quasi-Common Carriage: A
Case Study of Agency Survival, 18
Minn. J.L. Sci. & Tech. 631 (2017)...................... 21
Craig Silverman, Black Lives Matter
Activists Say They’re Being Silenced
By Facebook, Buzzfeed (June 19,
2020)....................................................................... 6
David Malloy, Zuckerberg tells Rogan
FBI warning prompted Biden laptop
story censorship, BBC News (Aug.
26, 2022) ................................................................. 9
Emily Vogels, et al., Most Americans
Think Social Media Sites Censor
Political Viewpoints, Pew Research
Center (Aug. 19, 2020) .......................................... 9
vii
Eugene Volokh, Treating Social Media
Platforms Like Common Carriers?, 1
J. Free Speech L. 377 (2021) ............................... 14
Frederick Mostert & Alex Urbelis,
Social media platforms must
abandon algorithmic secrecy,
Financial Times (June 16, 2021)................. 5, 7, 12
Gabriel Nicholas, Shadowbanning Is
Big Tech’s Big Problem, The Atlantic
(April 28, 2022) ...................................................... 8
Hans A. von Spakovsky, YouTube UTurn: Censors Strike Again for No
Good Reason, Just as Inexplicably
Reverse Course, Heritage Foundation
(May 2, 2022) ......................................................... 6
Joanna Stern, Social-Media Algorithms
Rule How We See the World. Good
Luck trying to Stop Them., Wall
Street Journal (Jan. 17, 2021) ........................ 7, 12
Meta, COVID-19 and Vaccine Policy
Updates & Protections ........................................... 1
Monica Anderson, Most Americans say
social media companies have too
much power, influence in politics,
Pew Research Center (July 22, 2020) ................... 9
Paul Barrett, et al., How tech platforms
fuel U.S. political polarization and
what government can do about it,
Brookings Institute (Sept. 27, 2021) ............... 7, 12
viii
Press Release, Mark R. Warner,
Warner, Slotkin, Colleagues Urge
Action on Misleading Search Results
About Abortion Clinics (June 17,
2022)....................................................................... 9
Rebecca Hersher, What Happened When
Dylann Roof Asked Google For
Information About Race?, NPR (Jan.
10, 2017) ............................................................... 12
Rebecca Kern, Push to reign in social
media sweeps the states, Politico
(July 1, 2022) ....................................................... 13
Richard C. Jebb, Introduction to John
Milton, Areopagitica (Richard C.
Jebb ed., Cambridge Univ. Press
1918)....................................................................... 1
Robby Soave, YouTube Says Giorgia
Meloni Video Was Removed in Error,
Restores It After Inquiry, Reason
(Sept. 28, 2022) ...................................................... 6
Sophie Lewis, “These are blatant
threats”: Kamala Harris urges
Twitter CEO Jack Dorsey to suspend
President Trump’s account, CBS
Online (Oct. 2, 2019).............................................. 8
William Blackstone, Commentaries on
the Laws of England (5th ed. 1773) .................... 20
1
STATEMENT OF AMICI INTEREST*
In seventeenth-century England, those hoping to
print a book needed permission from either the
Archbishop of Canterbury or the Bishop of London.
Those officials censored publications deemed contrary to the public good—for example, books “contrary
to morals or to the truth of the Faith.” Richard C.
Jebb, Introduction to John Milton, Areopagitica, at
xxv (Richard C. Jebb ed., Cambridge Univ. Press
1918).
In twenty-first century America, the First
Amendment forbids government officials from engaging in this sort of censorship. Does it also bar the
government from stopping censorship by private entities? That question arises because social-media
companies, which operate largely free of regulatory
oversight, exercise immense power to suppress views
with which they disagree. For example, Facebook—a
platform that reaches more than 70 percent of the
U.S. population—will “remove” speech that “undermine[s] the severity of COVID-19.” Meta, COVID-19
and Vaccine Policy Updates & Protections, https://
perma.cc/HC5X-ZELP.
The question whether the First Amendment entitles social-media companies to censor speech is immensely important. The internet is “the modern
public square.” Packingham v. North Carolina, 137
S. Ct. 1730, 1737 (2017). Private companies operate
that public square. And in doing so, they often de-
* The amici States provided all parties with the notice
required by Rule 37.2(a).
2
cide who may speak, and what ideas users may discuss. When platforms engage in such censorship,
they undermine the “free exchange of ideas” that
free-speech protections exist to facilitate. Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 800 (1985). And they threaten the development
of important insights and discoveries, many of which
begin as fringe views. See, e.g., Whole Woman’s
Health v. Paxton, 10 F.4th 430, 466 (5th Cir. 2021)
(en banc) (Ho, J., concurring) (recounting how germ
theory, first expounded by Semmelweis and Lister,
went from fringe to mainstream). Further, if socialmedia companies are absolutely entitled to censor
unpopular views, what is the limiting principle?
May “email providers, mobile phone companies, and
banks” claim a constitutional right to “cancel the accounts of anyone who sends an email, makes a phone
call, or spends money in support of a disfavored political party, candidate, or business”? NetChoice, LLC
v. Paxton, — F.4th —, 2022 WL 4285917, No. 2151178, slip op. 2 (5th Cir., Sept. 16, 2022).
The States are filing this amicus brief because
they desperately need an answer to the question presented. “The virtue of a democratic system with a
First Amendment is that it readily enables the people” to debate difficult issues, to persuade one another, and “to change their laws accordingly.” United
States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia,
J., dissenting). The system cannot work if the public
lacks access to the means by which citizens may engage with each other. Censorship by social-media
companies thus poses a very real threat to effective
self-governance.
For that reason, States have
passed, or are considering, laws to address the problem. Those state laws implicate the question of
3
whether, and in what ways, the government may
regulate or discourage private censorship. By granting certiorari and deciding this case, the Court will
provide guidance regarding which policies States
may (and may not) pursue. The Court should do so.
And it should make clear that the First Amendment
leaves the States with room to address censorship
and the threat it poses to open discourse
SUMMARY OF ARGUMENT
Social-media companies, whose platforms function as the modern public square, censor their users’
speech. States have recognized that censorship undermines the marketplace of ideas. So they have begun in earnest to regulate censorship on social-media
platforms.
Thoughtful jurists have differed on the question
of whether, and to what extent, States may regulate
such censorship without running afoul of the Free
Speech Clause. But this Court has not yet grappled
with the issue. This case provides it with an ideal
vehicle for doing so. The Court should grant review.
And it should hold that, in at least some circumstances, States may regulate censorship on socialmedia platforms. True, the Free Speech Clause generally prohibits the government from compelling
speech. Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241, 258 (1974). But the government does
not compel speech simply by requiring owners of
publicly available fora to allow third-parties to speak
in those fora. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 76 (1980). In many circumstances,
that is all that laws regulating censorship on socialmedia platforms do.
4
In any event, rules pertaining to common carriers
permit the regulation of censorship on social-media
platforms. Common carriers are “private enterprises” that “provid[e] essential public services” and that
“hold themselves out to serve the public without individualized bargaining.” Net Choice, slip op. at 44–
45, 53 (op. of Oldham, J.). States can require common carriers to supply their services “without discrimination,” including discrimination based on
viewpoint or ideology. Id. at 45. For example, telephone companies are common carriers. And States
may lawfully require them to provide services to all
prospective customers, without regard to the topics
those customers plan to discuss by phone. Many social-media companies are common carriers because
they—like telephone companies—provide an essential communication service and hold themselves out
to serve the public. Under the common-carrier doctrine, the States can forbid social-media companies
from denying service, or from providing inferior service, based on the user’s viewpoint.
ARGUMENT
I.
Social-media companies regularly engage
in censorship that impoverishes the free
exchange of ideas.
The internet is “the modern public square.” Packingham, 137 S. Ct. at 1737. But the modern square,
unlike its historic predecessor, is controlled by a
small number of private companies. Those companies have tremendous power about what is said and
what is shown for others to view; they have “incredible influence over the content that’s put out into the
world.” Ahiza García-Hodges, Big Tech has big power over online speech. Should it be reined in?, NBC
5
News (Jan. 21, 2021), https://perma.cc/FN7D-BL9T.
As a result, these companies “wield enormous power
over billions of citizens worldwide.” Frederick
Mostert & Alex Urbelis, Social media platforms must
abandon algorithmic secrecy, Financial Times (June
16, 2021), https://perma.cc/GN74-6DDH. Whereas
the preacher in early America needed no man’s permission to speak in the town square, social-media
companies claim an absolute right to forbid today’s
believers from evangelizing on their networks.
Social-media companies regulate speech in at
least two ways. First, they engage in old-fashioned
censorship—censoring particular content or speakers. Second, they elevate and depress speech in secret, using proprietary algorithms.
Examples of old-fashioned censorship abound. In
the summer of 2021, Senator Rand Paul, a doctor,
opined about the relative inefficacy of cloth masks in
combating the COVID-19 pandemic. The Senator
posted a video explaining his views on the popular
video social-media platform YouTube.
YouTube
promptly removed the video, and then banned the
Senator from posting any videos—on any topic—for a
week. See, e.g., AP, YouTube suspends Rand Paul
after misleading video on masks, PBS News Hour
(Aug. 11, 2021), https://perma.cc/U2PD-K76U. Senator Paul’s view is widely accepted today.
See
Apoorva Mandavilli, The C.D.C. concedes that cloth
masks do not protect against the virus as effectively
as other masks., N.Y. Times (Jan 14, 2022), https://
perma.cc/77LD-NL5K. And his perspective might
have been immensely important at the time to individuals deciding how best to protect themselves.
Nonetheless, YouTube forbade him from discussing
the matter on its platform.
6
One year earlier, a different platform silenced a
different set of voices. While the country was still
roiling from the protests over George Floyd’s murder,
Facebook apparently flagged and removed posts calling attention to allegedly racist conduct. Craig Silverman, Black Lives Matter Activists Say They’re Being Silenced By Facebook, Buzzfeed (June 19, 2020),
https://perma.cc/6F6S-UL4V.
Another example. Just this year, YouTube censored a video discussing documented instances of voting fraud—including fraud committed through mailin absentee ballots. YouTube removed the video
from public view, even though public records confirm
voting-fraud prosecutions arising from mailed absentee ballots. See Hans A. von Spakovsky, YouTube UTurn: Censors Strike Again for No Good Reason, Just
as Inexplicably Reverse Course, Heritage Foundation
(May 2, 2022), https://perma.cc/8PAV-CW25. Not
two decades earlier, Justice Stevens cited documented cases of absentee-ballot fraud as proof that “voter
fraud” is “real” and “could affect the outcome of a
close election.” Crawford v. Marion County Election
Bd., 553 U.S. 181, 195–96 (2008) (opinion of Stevens,
J.). Today, that view is apparently verboten on
YouTube.
A final, very recent, example. After Giorgia
Meloni won an election that will make her the Prime
Minister of Italy, YouTube scrubbed one of her 2019
speeches espousing traditionalist views on family
and marriage. Robby Soave, YouTube Says Giorgia
Meloni Video Was Removed in Error, Restores It After
Inquiry, Reason (Sept. 28, 2022), https://perma.cc
/RY3T-7DW3. YouTube reversed course only after
facing significant pushback over its apparent censorship. Id.
7
Turning to censorship-by-algorithm, the evidence
is harder to unearth because the censorship occurs in
secret. Using algorithms, social-media platforms can
“amplify—or limit—the dissemination of information
to their hundreds of millions of users.” Bill Baier &
Caitlin Chin, Addressing Big Tech’s power over
speech, Brookings Institute (June 1, 2021), https://
perma.cc/Y3Y2-A3DY. These algorithms are not
available to the public. They are, instead, tightly
guarded trade secrets. As a result, “[c]omputers are
in charge of what we see and they’re operating without transparency.” Joanna Stern, Social-Media Algorithms Rule How We See the World. Good Luck
trying to Stop Them., Wall Street Journal (Jan. 17,
2021), https://perma.cc/E3LK-6JNH.
These algorithms are so embedded into social-media platforms’
operation that they operate like a central decisionmaker; “it is doubtful that there is a department
or team with full visibility of a platform’s secretive
black box of algorithms.” Mostert & Urbelis, Social
media platforms must abandon algorithmic secrecy,
Financial Times (internal quotation marks omitted).
Algorithms, of course, are only semi-autonomous.
Their operation reflects human decisionmaking regarding which speech to promote and which to suppress. Facebook, for its part, “does extensive internal
research on the polarization problem and periodically
adjusts its algorithms to reduce the flow of content
likely to stoke political extremism and hatred.” Paul
Barrett, et al., How tech platforms fuel U.S. political
polarization and what government can do about it,
Brookings Institute (Sept. 27, 2021), https://perma.cc
/UQ6A-3VP3. What constitutes “extremism”? That
is up to Facebook. And that is scary when one accounts for the fact that abolitionism, black equality,
8
and so many other successful reform movements
were initially derided as “extreme.”
This semi-autonomous censorship is more pernicious than traditional censorship because its victims
often do not know they are victims. Users “often
have no way of telling for sure whether they have
been shadowbanned or whether their content is
simply not popular.” Gabriel Nicholas, Shadowbanning Is Big Tech’s Big Problem, The Atlantic (April
28, 2022), https://perma.cc/MW3Y-LYDZ).
Even
worse, shadowbanning—the suppressing of information shared by particular users—“can follow the
logic of guilt by association.” Id. One study “found
that accounts that interacted with someone who had
been shadowbanned were nearly four times more
likely to be shadowbanned themselves.” Id. This geometric censorship poses a unique threat, and a
uniquely effective threat, to the censorship of unpopular ideas.
Both old-fashioned and algorithm-driven censorship is so well-known that government officials frequently pressure social-media companies to censor
speech for political reasons. Over the last several
years, federal officials have encouraged the major social-media platforms to censor speech. In the leadup to the 2020 general election, members of one major political party encouraged Twitter to block the account of the sitting President in the midst of his
reelection campaign. See, e.g., Sophie Lewis, “These
are blatant threats”: Kamala Harris urges Twitter
CEO Jack Dorsey to suspend President Trump’s account, CBS Online (Oct. 2, 2019), https://perma.cc/
KJ7L-RESB. And right before the 2020 election, Facebook reduced the visibility of stories about candidate Biden’s son’s emails after an FBI warning to the
9
company about misinformation. See David Malloy,
Zuckerberg tells Rogan FBI warning prompted Biden
laptop story censorship, BBC News (Aug. 26, 2022),
https://perma.cc/8QX8-93X9. More recently, members of the party in power have pressured Google to
censor results that might discourage abortion. See,
e.g., Press Release, Mark R. Warner, Warner, Slotkin, Colleagues Urge Action on Misleading Search
Results About Abortion Clinics (June 17, 2022), https
://perma.cc/3QEW-7U36.
And recently disclosed
communications show that the federal government
colluded with social-media companies to ensure the
censorship of disfavored views regarding COVID-19.
See Attachment to Joint Statement on Discovery
Disputes, Missouri v. Biden, 3:22-cv-01213, No. 71-3
(Aug. 31, 2022, W.D. La.).
The public is aware of all this. Even two years
ago, “[m]ajorities in both major parties believe[d]
censorship [was] likely occurring” at the major socialmedia platforms. Emily Vogels, et al., Most Americans Think Social Media Sites Censor Political Viewpoints, Pew Research Center (Aug. 19, 2020), https://
perma.cc/X4MG-7Z8R. Not only does the public
think the platforms are censoring speech, but the
public has “little … confidence that these platforms”
can “determine which content should be flagged.” Id.
What is more, “47% of the public thinks the government should be regulating major technology companies more than it is now, while just 11% think these
companies should be regulated less.” Monica Anderson, Most Americans say social media companies
have too much power, influence in politics, Pew Research Center (July 22, 2020), https://perma.cc/P55AA6NG. “It is becoming harder to overlook the reality
that some change may be required to address the
10
power and risks associated with the dominance of social media platforms.” Baier & Chin, Addressing Big
Tech’s power, Brookings Institute.
Public perception of these issues is irrelevant to
the legal question this case presents. The Court decides constitutional questions through the application of legal texts and doctrines, not by public referenda. But public perception is relevant to the issue’s
importance. If significant percentages of the public
want legislation on a particular issue, they are likely
to get it. If that legislation is to accomplish anything, legislators must enact laws that comport with
the Constitution. This case provides the Court with
a chance to provide important guidance regarding
what the States can do to discourage or prohibit censorship. The States turn to that issue now.
II. The States need guidance regarding what
they can do to promote the free exchange
of ideas on social-media platforms.
Despite social-media platforms’ unprecedented
power over what billions of people see and hear, the
companies that control the new public square are
“‘limited shockingly little.’” García-Hodges, Big Tech,
NBC News (quoting UCLA Law Professor Mark
Grady). Many States want to change that. But they
face deep uncertainty regarding the degree to which
the First Amendment limits their authority. With
this case, the Court can provide that guidance and
clarify that States may experiment with policies that
discourage censorship while respecting the limits of
the First Amendment.
11
A.
Most state legislatures have enacted
or proposed laws regulating
censorship by social-media entities.
Florida and Texas have led the way in responding
to online censorship; both have enacted laws that, in
one form or another, prohibit social-media platforms
from censoring their users’ speech based on users’
viewpoints.
See Tx. Civ. Prac. & Rem. Code
§143A.002(a); Fla. Stat. Ann. §501.2041(2)(j).
Pending statutes in many other States have a
similar aim. In Ohio, for example, the General Assembly is considering a bill regulating censorship by
social-media platforms with at least 50 million users.
The proposed law would prohibit these platforms
from censoring speech on the basis of the speaker or
user’s viewpoint. And it would create a cause of action for injunctive relief and attorney’s fees. See
Ohio Gen. Assembly, H.B. 441 (introduced Oct. 6,
2021), https://perma.cc/N93F-W8RJ. Along the same
lines, a proposed law in Oklahoma would empower
Sooners to sue large social-media platforms (those
with at least 75 million users) that censor, or that
use algorithms to censor, political or religious speech.
See Oklahoma Legislature, S.B. 383 (introduced Feb.
1, 2021), https://perma.cc/GQW7-FAQZ.
Hawkeye legislators are approaching the same
problem in a different way. One proposed bill in Iowa would cancel tax credits and other public benefits
for social-media platforms that censor constitutionally protected speech. Iowa General Assembly, S.F.
580 (introduced March 16, 2021), https://perma.cc/
WE9H-9GML.
Similar legislation elsewhere is
stalled based on First Amendment concerns—
concerns the Court could use this case to resolve.
12
See, e.g., New Hampshire H.B. 133 (introduced Jan.
4, 2021), https://perma.cc/28EX-JJ7V; Missouri H.B.
482 (introduced Dec. 14, 2020), https://perma.cc/
2XUW-65GV.
Other States have considered or enacted laws addressing another problem that arises from concentrated private control over the public square. One
consequence of a public square controlled by a few
private hands is that private interests—in order to
maximize the value of those private interests—
produce silos for ideas rather than a marketplace. In
these silos, “[p]eople are shown things that appeal
most to them, they click, they read, they watch, they
fall into rabbit holes that reinforce their thoughts
and ideas, they connect with like-minded people.”
Stern, Social-Media Algorithms, Wall Street Journal.
This creates an echo chamber rather than a marketplace of ideas. And these echo chambers breathe life
into ideas that would not fare well if subject to challenge in the free marketplace of ideas. “Algorithmic,
robotic content has, in large part, assisted and powered election interference, fomented domestic rebellion and facilitated extremism online.” Mostert &
Urbelis, Social media platforms must abandon algorithmic secrecy, Financial Times. To take just one
well-known example, many believe that the internet
fueled Dylann Roof’s racist views. See, e.g., Rebecca
Hersher, What Happened When Dylann Roof Asked
Google For Information About Race?, NPR (Jan. 10,
2017), https://perma.cc/W4P7-6253. So even though
“platforms like Facebook, YouTube, and Twitter likely are not the root causes of political polarization, …
they do exacerbate it.” Barrett, How tech platforms
fuel U.S. political polarization, Brookings Institute.
13
New York recently passed a law aimed to counteract some of the polarizing effects of social-media
platforms. Its soon-to-be-effective law requires that
social-media companies have a “clear and concise policy” addressing how they will “respond and address”
reports of “hateful conduct” on their platforms. N.Y.
Gen. Bus. Law. §394-ccc (eff. Dec. 3, 2022). New
York is thus regulating censorship from a different
angle; rather than taking steps to prohibit censorship, the State is seeking to encourage the removal of
certain content.
One can debate the merits of these laws. But everyone must agree that more regulation is on the
horizon. All told—by one count—there are over 100
pending bills in 34 States addressing various aspects
of social-media censorship and related problems.
Rebecca Kern, Push to reign in social media sweeps
the states, Politico (July 1, 2022), https://perma.cc/
A8N7-DALS.
B.
The States may constitutionally
regulate censorship on social-media
platforms.
The previous discussion shows that the public
wants, and that States are enacting, laws regulating
censorship on social-media platforms. Can they?
More precisely: To what extent does the First
Amendment entitle social-media platforms to censor
users’ speech? That question divides the circuits.
Compare Pet.App.1a; with NetChoice, 2022 WL
4285917.
The disagreement is perhaps understandable. “It
is not at all obvious how” this Court’s “existing precedents, which predate the age of the internet, should
apply to large social media companies.” NetChoice,
14
LLC v. Paxton, 142 S. Ct. 1715, 1717 (2022) (Alito, J.,
dissenting from order vacating stay). In some contexts, this Court’s cases interpret the First Amendment to prohibit requiring private entities to host
speech with which they disagree. See, e.g., Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258
(1974). At the same time, existing precedent supports the argument that compelled hosting for socialmedia companies “would be constitutionally permissible” in at least some circumstances. Eugene Volokh, Treating Social Media Platforms Like Common
Carriers?, 1 J. Free Speech L. 377, 414 (2021). In the
social-media context, as in others, citizens have an
important “interest in the functioning of the community in such manner that the channels of communication remain free.” Marsh v. Alabama, 326 U.S.
501, 508 (1946).
Sooner or later, the Court will “have no choice but
to address how [its] legal doctrines apply to highly
concentrated, privately owned information infrastructure such as digital platforms.” Biden v. Knight
First Amend. Inst. At Columbia Univ., 141 S. Ct.
1220, 1221 (2021) (Thomas, J., concurring). And
sooner would be better than later, given the danger
that censorship poses and the attendant demand for
legislation in this field.
1. “Although its meaning is fixed according to the
understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond
those the Founders specifically anticipated.” N. Y.
State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct.
2111, 2132 (2022). For that reason, when deciding
constitutional cases, this Court does “not mechanically apply the rule used in the predigital era” to technology of today. Riley v. California, 573 U.S. 373,
15
406–07 (2014) (Alito, J., concurring); see, e.g., Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018);
Packingham, 137 S. Ct. at 1736; Riley, 573 U.S. at
385; Missouri v. McNeely, 569 U.S. 141, 154 & n.4
(2013); Kyllo v. United States, 533 U.S. 27, 33–34
(2001); United States v. Jones, 565 U.S. 400, 417
(2012) (Sotomayor, J., concurring). With respect to
the First Amendment in particular, the Court has
long recognized that each communication “method
tends to present its own peculiar problems.” Joseph
Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952).
For example, when the Court first confronted some of
the “unique characteristic[s]” of radio, it concluded
that government could restrict “specified network
practices” without abridging freedom of speech. Nat’l
Broad. Co. v. United States, 319 U.S. 190, 226–27
(1943). Years later, and confronting another new
communication technology, the Court approved government regulations that prohibited cable companies
from silencing “the voice” of some “speakers with a
mere flick of the switch.” Turner Broadcasting Sys.,
Inc. v. FCC (Turner I), 512 U.S. 622, 656 (1994); see
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 197
(1997).
As Florida’s petition makes clear, there are “important technological difference[s] between” the internet and the mediums of expression that preceded
it. Turner I, 512 U.S. at 656. Of particular relevance
here, social-media companies do not operate like television stations, newspapers, or other businesses
that sometimes host third-party speech. For one
thing, each platform “has an effective monopoly over
its particular niche of online discourse.” NetChoice,
slip op. at 57. “While no law gives them a monopoly,
‘network effects entrench these companies’ because
16
it’s difficult or impossible for a competitor to reproduce the network that makes an established Platform useful to its users.” Id. (quoting Knight, 141 S.
Ct. at 1224 (Thomas, J., concurring)). The unique
barriers to entry reduce the risk of meaningful competition, which gives the companies greater ability to
control the public discourse on the important matters
people use social media to discuss—“civic life, art,
culture, religion, science, politics, school, family,”
“business,” and more. Id. at 55–56. Just as a “cable
operator exercises far greater control over access”
compared to a newspaper editor, Turner I, 512 U.S.
at 656, a social-media company has far more control
to promote or suppress speech than a cable operator,
cf. Knight, 141 S. Ct. at 1224 (Thomas, J., concurring).
What is more, these companies generally do not
carefully select or curate the third-party speech they
host. For the most part, they “hold themselves out to
serve the public.” NetChoice, slip op. at 54. “They
permit any adult to make an account and transmit
expression after agreeing to the same boilerplate
terms of service.” Id. While companies do block
speakers or suppress speech relating to certain ideas,
see above 4–10, only a tiny fraction of posted “content
is meaningfully reviewed or edited.” Net Choice, slip
op. at 31. Further, at all times, the companies maintain that they are not editors, and that they are hosting third-party speech—not engaging in speech of
their own. Id. at 29, 40–44. As a result, no reasonable observer would “construe the act of hosting
speech” on a social-media platform “as an expression
of support for its message.” Id. at 30.
2. The foregoing shows that social-media companies pose distinctive problems.
Does the First
17
Amendment forbid the States from meaningfully addressing those problems? The Eleventh Circuit apparently thinks so; its decision, which adopts the arguments pressed by social-media companies, leaves
the States without practical options for prohibiting
censorship. But the Eleventh Circuit erred. While
the compelled-speech doctrine prohibits the Government from forcing individuals to speak, laws prohibiting censorship on social-media platforms do not
necessarily compel speech. Contra Pet.App.25a–30a,
34a–40a. What is more, and contrary to the Eleventh Circuit, see Pet.App.41a–46a, many socialmedia platforms can be regulated as common carriers. And the rules governing common carriers give
the States significant leeway to regulate censorship.
Compelled speech. The First Amendment prohibits the government from forcing “individuals to
endorse ideas they find objectionable.” Janus v. Am.
Fed’n of State, Cnty., & Mun. Emps., Council 31, 138
S. Ct. 2448, 2464 (2018). This follows from the
Amendment’s guaranteeing the “‘freedom of speech,’
a term necessarily comprising the decision of both
what to say and what not to say.” Riley v. Nat’l Fed’n
of the Blind of N. Carolina, Inc., 487 U.S. 781, 796–
97 (1988).
Applying this doctrine, the Court has held that
the First Amendment sometimes, but not always,
prohibits the government from requiring a private
actor to host a third party’s speech. Of most relevance here, the doctrine prohibits laws that “compel[]
the host to speak.” NetChoice, slip op. at 27.
Determining whether a mandatory-hosting law
requires a host to speak depends heavily on context.
For example, newspapers exercise close “editorial
18
control and judgment” when deciding what to publish. Id. at 22 (quoting Miami Herald, 418 U.S. at
258). And because “a newspaper prints a curated set
of material selected by its editors,” everything that
appears in the paper is, “in a sense, the newspaper’s
own speech.” Id. For that reason, the First Amendment forbids laws requiring newspapers to print columns—such laws unconstitutionally compel speech.
See Miami Herald, 418 U.S. at 258; see also Pacific
Gas & Elec. Co. v. Public Utilities Comm’n of Cal.,
475 U.S. 1, 14–15 (1986) (plurality). Similarly, when
a parade organizer selects participants so as to communicate a particular message, a law mandating a
participant’s inclusion may violate the First Amendment by compelling the parade organizer to express a
view. See Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 515 U.S. 557, 568 (1995).
But requiring a private actor to host speech does
not always require that actor to speak. That is why
this Court upheld a law entitling private “individuals
to exercise free speech and petition rights on the
property of a privately owned shopping center to
which the public [was] invited.” PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 76 (1980). The
Court determined that, because private shopping
centers are opened to the public, the “views expressed by members of the public in passing out
pamphlets or seeking signatures for a petition”
would “not likely be identified with those of the owner.” Id. at 87. As such, the law, though it required
the hosting of speech, did not violate the First
Amendment’s prohibition on compelling speech. Id.;
accord Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 64–65 (2006).
19
The question of how this doctrine applies to social-media platforms divides the circuits. Compare
Pet.App.37a–40a with NetChoice, slip op. at 27–34.
The right answer turns on the nature of social-media
companies. Are social-media platforms, like the
shopping mall in Pruneyard, mere fora whose owners
are not made to speak themselves when their platforms host the speech of others? Or are they, like
newspaper in Miami Herald, made to speak when
they host such speech?
They are more like mere hosts. One way to approach that question is to ask whether social-media
platforms are even speaking at all. They are not.
They all but concede they are not by embracing the
protections included in §230 of the 1996 Telecommunications Act. That provision exempts social-media
platforms from liability relating to most content that
they host; it says that “[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another
information content provider.” 47 U.S.C. §230(c)(1).
Platforms retain this immunity even if they “voluntarily” and “in good faith” act “to restrict access to or
availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,
whether or not such material is constitutionally protected.” Id. at §230(c)(2)(A). Section 230 thus reflects Congress’s judgment that online platforms are
“not … the publisher or speaker of the usersubmitted content they host,” and that this remains
true even if the platforms censor objectionable content. Net Choice, slip op. 40 (internal quotation
marks omitted). And when social-media companies
embrace §230’s protections—and most, perhaps all,
20
do—they disclaim any suggestion that the speech
they host is their own.
That reflects on-the-ground realities. Again, major social-media companies “hold themselves out to
serve the public.” NetChoice, slip op. at 54. Unlike a
newspaper or parade organizer, the forum they provide is generally open to all adults. Unlike a newspaper or parade organizer, social-media companies
make no effort to review the vast majority of the material they host. Id. at 31. Thus, unlike a newspaper
or parade organizer, they do not curate material to
make (or preserve) an expressive viewpoint. Id. Indeed, the outlets deny that they exercise this sort of
editorial discretion. Id. at 30–31. All told, the companies that run major social-media platforms are
mere hosts. What was true of the mall owner in
PruneYard is true here, too: the “views expressed by
members of the public” on social-media platforms
would “not likely be identified with those of the owner.” 447 U.S. at 87. The companies that host these
platforms are thus hosts, not speakers. So they are
not made to speak when they are barred from engaging in censorship.
Common carriers. “Where … private parties
control the avenues for speech, our law has typically
addressed concerns about stifled speech through other legal doctrines, which may have a secondary effect
on the application of the First Amendment.” Knight,
141 S. Ct. at 1222 (Thomas, J, concurring). One of
those doctrines relates to common carriers. See id.
For centuries, Anglo-American law has imposed
on certain businesses “a general requirement to
serve all comers.” Id.; see also 3 William Blackstone,
Commentaries on the Laws of England, 164 (5th ed.
21
1773) (discussing inn-keepers and “other victuallers”); Telegraph Lines Act, 25 Stat. 382, 383 (1888).
These rules grow from the “notion that persons engaged in ‘common callings’ have a ‘duty to serve.’”
Net Choice, slip op. at 45 (op. of Oldham, J.). The
common-carrier doctrine thus applies to “private enterprises” that “provid[e] essential public services”
and that “hold themselves out to serve the public
without individualized bargaining.” Id. at 45, 53.
These entities must provide these services “without
discrimination” and at a “reasonable rate.” Id. at 45.
Courts have long imposed common-carrier requirements on companies providing important modes
of transportations—classic examples include ferries
and railroads. Id. at 46; Messenger v. Pennsylvania
R. Co., 37 N.J.L. 531, 533–35 (1874) (railroads).
They have also imposed these obligations on the
“communications industry.” Net Choice, slip op. 47.
For example, when “legislators grew ‘concerned
about the possibility that the private entities that
controlled’” the telegraph might “‘manipulate the
flow of information to the public,’” they enacted laws
forbidding discrimination in the transmission of
messages. Id. at 47 (quoting Genevieve Lakier, The
Non-First Amendment Law of Freedom of Speech,
134 Harv. L. Rev. 2299, 2321 (2021)) (brackets omitted); see, e.g., Telegraph Lines Act §2. Later, courts
extended the doctrine to telephone companies. See,
e.g., State ex rel. Webster v. Nebraska Telephone Co.,
17 Neb. 126 (1885). Similar obligations extend to
“cable TV, satellite TV, broadcast, and internet service providers.” Brent Skorup & Joseph Kane, The
FCC and Quasi-Common Carriage: A Case Study of
Agency Survival, 18 Minn. J.L. Sci. & Tech. 631, 649
(2017).
22
The common-carrier doctrine bears on the scope
of businesses’ First Amendment rights. For example,
in the 1980s, the Court contrasted broadcasters with
“common carriers” when holding broadcasters had
“the widest journalistic freedom.” FCC v. League of
Women Voters of California, 468 U.S. 364, 378 (1984)
(citation omitted). And the “long history” of “restricting the exclusion right of common carriers … may
save” laws regulating these entities’ speech-related
conduct “from triggering heightened scrutiny” under
the First Amendment. Knight, 141 S. Ct. at 1224
(Thomas, J., concurring). That makes sense. Imagine what it would mean if the States lacked power to
prohibit censorship by common carriers. Phone companies, internet providers, and parcel-delivery services could claim a First Amendment right not to
serve anyone who supports a disfavored cause.
NetChoice, slip op. at 2. There is no evidence that
the “freedom of speech” was originally understood to
vest such immense power in common carriers.
These principles inform the question presented.
Net Choice, slip op. at 45 (op. of Oldham, J.). Socialmedia platforms are as essential to communication
today as telephones were a few decades back. The
“private enterprises” that run these platforms thus
“provid[e] essential public services.” Id. And, as already noted, they “hold themselves out to serve the
public without individualized bargaining.” Id. at 44,
53. Accordingly, they are common carriers. Id. at
53–55. It follows that States may pass laws forbidding these entities from engaging in “discrimination.”
Id. That includes censorship based on political viewpoint. While States must abide by the First Amendment themselves, the First Amendment leaves them
23
leeway to regulate censorship by social-media companies.
“Ownership does not always mean absolute dominion.” Marsh, 326 U.S. at 506. “The more an
owner, for his advantage, opens up his property for
use by the public in general, the more do his rights
become circumscribed by the statutory and constitutional rights of those who use it.” Id. So it is with
companies that operate a physical public square. So
it is with common carriers. And so it is with socialmedia platforms that qualify as common carriers.
*
*
*
Reasonable minds may disagree about the application of these doctrines. Indeed, reasonable minds
have disagreed. Both the Fifth Circuit in NetChoice
and the Eleventh Circuit below issued scholarly,
well-reasoned decisions concerning the application of
the compelled-speech and common-carrier doctrines
in this context. And they reached inconsistent results. When an issue of such importance divides
thoughtful jurists, it deserves this Court’s attention.
24
CONCLUSION
This Court should grant certiorari and reverse.
OCTOBER 2022
Respectfully submitted,
DAVE YOST
Ohio Attorney General
BENJAMIN M. FLOWERS*
*Counsel of Record
Ohio Solicitor General
MICHAEL J. HENDERSHOT
Chief Deputy Solicitor General
30 E. Broad St., 17th Fl.
Columbus, Ohio 43215
614-466-8980
bflowers@OhioAGO.gov
CHARLES MILLER
Deputy Attorney
General
Counsel for Amicus Curiae the State of Ohio
25
Additional Counsel
STEVE MARSHALL
Attorney General of Alabama
TREG R. TAYLOR
Attorney General of Alaska
MARK BRNOVICH
Attorney General of Arizona
LESLIE RUTLEDGE
Attorney General of Arkansas
LAWRENCE G. WASDEN
Attorney General of Idaho
JEFFREY S. THOMPSON
Solicitor General of Iowa
DANIEL CAMERON
Attorney General of Kentucky
LYNN FITCH
Attorney General of Mississippi
ERIC S. SCHMITT
Attorney General of Missouri
AUSTIN KNUDSEN
Attorney General of Montana
DOUGLAS J. PETERSON
Attorney General of Nebraska
26
ALAN WILSON
Attorney General of South Carolina
JONATHAN SKRMETTI
Attorney General of Tennessee
KEN PAXTON
Attorney General of Texas
SEAN D. REYES
Attorney General of Utah
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.