Amicus Curiae Brief — Ashley Moody, Attorney General of Florida, et al., Petitioners v. NetChoice, LLC, dba NetChoice, et al.
Supreme Court briefDec 7, 2023
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Nos. 22-277 and 22-555
In the
Supreme Court of the United States
ASHLEY MOODY, ATTORNEY GENERAL
OF FLORIDA, et al.,
Petitioners,
v.
NETCHOICE, LLC, D/B/A NETCHOICE, et al.,
Respondents.
(For Continuation of Caption See Inside Cover)
On Writs of Certiorari to the United States Courts
of A ppeals for the Eleventh and Fifth Circuits
BRIEF OF THE LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS UNDER LAW AS AMICUS
CURIAE IN SUPPORT OF NO PARTY
Christopher M. Mason
A licia Johnson-Ishman
Nixon Peabody LLP
Tower 46
55 West 46th Street
New York, NY 10036
Seth A. Horvath
Michael J. Testa
Nixon Peabody LLP
70 West Madison Street
Suite 5200
Chicago, IL 60602
Damon Hewitt*
Jon Greenbaum
Dariely Rodriguez
David Brody
Counsel of Record
Marc Epstein
Lawyers’ Committee for
Civil Rights Under Law
1500 K Street, N.W., Suite 900
Washington, DC 20016
202-662-8320
dbrody@lawyerscommittee.org
* Admitted in Pennsylvania
only; practice limited to
matters before federal courts.
Counsel for The Lawyers’ Committee for Civil Rights
Under Law as Amicus Curiae
NETCHOICE, LLC, D/B/A NETCHOICE, et al.,
Petitioners,
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
Respondent.
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS .............................................. i
TABLE OF AUTHORITIES ...................................... iii
STATEMENT OF INTEREST OF AMICUS CURIÆ .. 1
SUMMARY OF ARGUMENT ..................................... 2
ARGUMENT................................................................ 5
I.
II.
Barring online businesses from removing hate
and discrimination on their platforms would
impair the free expression and association of
Black people and other people of color. ............ 5
A.
Upholding H.B. 20 and S.B. 7072 would
undermine the ability of online
businesses to self-regulate and
proactively remove hateful content from
their platforms. ...................................... 5
B.
Black people and other people of color
experience a significant amount of
speech involving hate and
discrimination online. ............................ 8
C.
Online hate and discrimination harm
Black people and other people of color
and have chilling effects on their free
expression and civic participation. ...... 14
Online disinformation and voter intimidation
threaten the ability of Black people and other
people of color to exercise fundamental civil
rights. .............................................................. 19
ii
III.
Striking down the Texas and Florida laws
should not prevent lawmakers from regulating
social media platforms, including to prohibit
online discrimination. ..................................... 25
CONCLUSION .......................................................... 32
iii
TABLE OF AUTHORITIES
Cases
Pages
44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484 (1996) .............................3, 30
303 Creative LLC v. Elenis, 600
U.S. 570 (2023)........................................... 1, 17, 30
Arcara v. Cloud Books, Inc., 478
U.S. 697 (1986).....................................................26
Arizona v. Inter Tribal Council
of Ariz., 570 U.S. 1 (2013) ......................................1
Bd. of Dirs. of Rotary Int’l v.
Rotary Club of Duarte, 481
U.S. 537 (1987).....................................................30
Bob Jones Univ. v. United
States, 461 U.S. 574 (1983)..................................30
Burson v. Freeman, 504 U.S.
191 (1992) ................................................... 3, 27, 31
Burwell v. Hobby Lobby Stores,
Inc., 573 U.S. 682 (2014) .....................................30
Cent. Hudson Gas & Elec. Corp.
v. Pub. Serv. Comm’n of
N.Y., 447 U.S. 557 (1980) ..............................27, 31
Counterman v. Colorado, 600
U.S. 66 (2023).........................................................1
iv
Dumpson v. Ade, No. CV 181011 (RMC), 2019 WL
3767171 (D.D.C. Aug. 9,
2019) .......................................................................1
Fair Hous. Council of San
Fernando Valley v.
Roommates.com, LLC, 521
F.3d 1157 (9th Cir. 2008).....................................28
Gonzalez v. Google LLC, 598
U.S. 617 (2023).......................................................1
Henderson v. Source for Pub.
Data, 53 F.4th 110 (4th Cir.
2022) .....................................................................28
Ill. State Bd. of Elections v.
Socialist Workers Party, 440
U.S. 173 (1979).....................................................21
Kramer v. Union Free Sch. Dist.
No. 15, 395 U.S. 621 (1969) .................................21
Liapes v. Facebook, Inc., 313
Cal. Rptr. 3d 330 (Cal. Ct.
App. 2023) ............................................................28
NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449
(1958) ......................................................................8
v
Nat’l Coal. on Black Civic
Participation v. Wohl, No.
20-cv-8668, 2023 WL
2403012 (S.D.N.Y. Mar. 8,
2022) .................................................................1, 23
Pittsburgh Press Co. v.
Pittsburgh Comm’n on Hum.
Rel., 413 U.S. 376 (1973) .................................3, 27
R.A.V. v. City of St. Paul, 505
U.S. 377 (1992)...............................................26, 30
Reed v. Town of Gilbert, 576
U.S. 155 (2015).....................................................26
Roberts v. U.S. Jaycees, 468
U.S. 609 (1984).....................................................30
Rumsfeld v. Fund for Acad. &
Institutional Rts., Inc., 547
U.S. 47 (2006)............................................. 3, 26, 27
Shelby Cnty., Ala. v. Holder,
570 U.S. 529 (2013)................................................1
Students for Fair Admissions,
Inc. v. Univ. of N.C., 600
U.S. 181 (2023).......................................................1
United States v. Alvarez, 567
U.S. 709 (2012).................................................3, 30
United States v. O’Brien, 391
U.S. 367 (1968).....................................................26
vi
Ward v. Rock Against Racism,
491 U.S. 781 (1989) ..........................................4, 27
Yick Wo v. Hopkins, 118 U.S.
356 (1886) .............................................................21
Constitutions, Statutes, and
Rules
15 U.S.C. §§ 6501-06 .................................................28
18 U.S.C. § 2511 ........................................................28
18 U.S.C. § 2710 ........................................................28
47 U.S.C. § 605 ..........................................................28
D.C. Code § 2-1401.02 (2023)....................................28
Fla. Stat. § 501.2041 (2022) ....................................7, 8
Nev. Rev. Stat. § 651.050 (2023) ..............................28
Tex. Civ. Prac. & Rem. Code
§ 143A.001 (West 2021) .........................................7
Tex. Civ. Prac. & Rem. Code
§ 143A.002 (West 2021) .........................................7
Secondary Sources
Sylvia Albert et al., As a Matter
of Fact: The Harms Caused
by Election Disinformation,
Common Cause Educ. Fund
Report (Oct. 2021) ................................................21
vii
Amnesty Int’l, Troll Patrol
Findings: Using
Crowdsourcing, Data Science
& Machine Learning to
Measure Violence and Abuse
against Women on Twitter,
Amnesty Decoders ...............................................12
Anti-Defamation League,
Footage of Buffalo Attack
Spread Quickly Across
Platforms, Has Been Online
for Days (May 20, 2022) .......................................13
Anti-Defamation League Ctr.
for Tech. & Soc’y, Online
Hate and Harassment: The
American Experience 2023
(June 2023)...........................................................12
Anti-Defamation League Ctr.
for Tech. & Soc’y, What Is
Swatting? (Aug. 18, 2022) ...................................12
Ruha Benjamin, Race After
Technology (2019) ................................................29
David Brody & Sean Bickford,
Discriminatory Denial of
Service: Applying State
Public Accommodations
Laws to Online Commerce,
Lawyers’ Comm. for Civ.
Rts. Under Law (Jan. 2020) ................................28
viii
Ctr. for Fam. Rsch., Skin-deep
Resilience, Univ. of Ga.
(Mar. 2021) ...........................................................17
Kalyani Chadha et al., Women’s
Responses to Online
Harassment, 14 Int’l J.
Commc’ns 239 (2020) ...........................................18
Cmty. Rel. Serv., 2022 FBI Hate
Crime Statistics, Dep’t of
Justice (Oct. 30, 2023) ...........................................8
Juan Del Toro & Ming-Te
Wang, Online Racism and
Mental Health Among Black
American Adolescents in
2020, 62(1) J. Am. Acad.
Child Adolescent Psych. 25
(2023) ........................................................ 10, 11, 16
Maeve Duggan, Online
Harassment 2017, Pew Rsch.
Ctr. (July 11, 2017) ........................................14, 18
Elizabeth Dwoskin et al.,
Facebook’s race-blind
practices around hate speech
came at the expense of Black
users, new documents show,
Wash. Post (Nov. 21, 2021,
8:00 a.m.) ................................................................4
ix
Devin English et al., Daily
multidimensional racial
discrimination among Black
U.S. American adolescents,
66 J. Applied Developmental
Psych. 1 (2020) .....................................................11
Fed. Trade Comm’n, Serving
Communities of Color: A
Staff Report on the Federal
Trade Commission’s Efforts
to Address Fraud and
Consumer Issues Affecting
Communities of Color (Oct.
2021) .....................................................................31
Lucina Fisher & Brian McBride,
‘Ghostbusters’ Star Leslie
Jones Quits Twitter After
Online Harassment, ABC
News (July 20, 2016, 6:54
a.m.) ......................................................................19
Sheera Frenkel & Kate Conger,
Hate Speech’s Rise on
Twitter Is Unprecedented,
Researchers Find, N.Y.
Times (Dec. 2, 2022) ..............................................6
x
Jason Guerrasio, ‘Star Wars’
actress Kelly Marie Tran Left
Social Media After Racist
and Sexist Trolls Drove Her
to Therapy, Business Insider
(Mar. 3, 2021, 1:33 p.m.) ......................................18
Jessica Guynn, Facebook while
black: Users call it getting
‘Zucked,’ say talking about
racism is censored as hate
speech, USA Today (July 9,
2020, 6:17 p.m.) ......................................................4
Oliver L. Haimson et al.,
Disproportionate Removals
and Differing Content
Moderation Experiences for
Conservative, Transgender,
and Black Social Media
Users: Marginalization and
Moderation Gray Areas, 5
Proc. ACM on Hum.
Comput. Interaction 466
(2021) ......................................................................4
Rebekah Herrick et al., Gender
and Race Differences in
Mayors’ Experiences of
Violence, Ctr. for Am.
Women & Politics (2022) .....................................12
xi
Sherman James, John
Henryism and the health of
African Americans, 18
Culture, Med. & Psychiatry
163 (1994) .............................................................17
James Byrd Jr. Center to Stop
Hate at the Lawyers’
Committee for Civil Rights
Under Law, Hate in
Elections 8 (Sept. 2020) .......................................18
Brian TaeHyuk Keum, Impact
of Online Racism on Suicide
Ideation Through
Interpersonal Factors Among
Racial Minority Emerging
Adults: The Role of
Perceived Burdensomeness
and Thwarted
Belongingness, 38(5-6) J.
Interpersonal Violence 4537
(2022) ....................................................................17
Brian Keum & Matthew J.
Miller, Racism on the
Internet: Conceptualization
and Recommendations for
Research, 8(6) Psychology of
Violence 782 (June 7, 2018) ...................................9
xii
Alyan Layug et al., The Impacts
of Social Media Use and
Online Racial
Discrimination on Asian
American Mental Health:
Cross-sectional Survey in the
United States During
COVID-19, 6(9) JMIR
Formative Rsch. (Sept. 6,
2022) ...............................................................10, 15
Amanda Lenhart, Online
Harassment, Digital Abuse,
and Cyberstalking, Data &
Soc’y Rsch. Inst. (Nov. 21,
2016) .....................................................................18
Cristiano Lima & David
DiMolfetta, Antisemitic
tweets soared on Twitter
after Musk took over, study
finds, Wash. Post (Mar. 20,
2023, 9:02 a.m.) ......................................................6
Graham Macklin, The
Christchurch Attacks:
Livestream Terror in the
Viral Video Age, 12(6) CTC
Centinel 18 (July 2019) .......................................13
Meta, Hate Speech ...................................................5, 6
Meta, Misinformation: Policy
details ...................................................................20
xiii
Adam M. McCready et al.,
Students of Color, Mental
Health, and Racialized
Aggressions on Social Media,
58(2) J. Student Aff. Rsch. &
Prac. 179 (2021) ...................................................16
Ashley Nerbovig, Michigan’s
immigrant communities hit
with misinformation on
closed platforms, Detroit
Free Press (Nov. 27, 2020)...................................22
Safiya Noble, Algorithms of
Oppression (2018) ................................................29
Ciarán O’Connor, Hatescape:
An In-Depth Analysis of
Extremism and Hate Speech
on TikTok, Inst. for Strategic
Dialogue (Aug. 24, 2021) .....................................13
Tiani Perkins et al., Gender and
Racial Identity Moderate the
Effects of Online and Offline
Discrimination on Mental
Health: Dismantling
Systems of Racism and
Oppression During
Adolescence, 32(1) J. of Rsch.
on Adolescence 244 (2022) ...................................15
xiv
Blake Peterson, ICE, Dispelling
Rumors, Says It Won’t Patrol
Polling Places, ProPublica
(Nov. 2, 2019) .......................................................22
Julie Posetti & Nabeelah
Shabbir, The Chilling: A
Global Study of Online
Violence Against Women
Journalists, Int’l Ctr. for
Journalists 8, 11 (Nov. 2022)...............................19
Rashida Richardson, Racial
Segregation and the DataDriven Society: How Our
Failure to Reckon with Root
Causes Perpetuates Separate
and Unequal Realities, 36(3)
Berkeley Tech. L.J. 101
(2021) ....................................................................29
Russian Active Measures
Campaigns and Interference
in the 2016 U.S. Election,
Vol. 2: Russia’s Use of Social
Media with Additional
Views, S. Rep. No. 116-290
(2020) ....................................................................22
xv
Dhanaraj Thakur & DeVan
Hankerson Madrigal, An
Unrepresentative Democracy:
How Disinformation and
Online Abuse Hinder Women
of Color Political Candidates
in the United States, Ctr. for
Democracy & Tech. (2023) ...................................12
Alvin Thomas, Online Racial
Harassment Leads to Lower
Academic Confidence for
Black and Hispanic
Students, The Conversation
(Jan. 23, 2023, 8:23 a.m.)...............................10, 16
TikTok, Combating
misinformation ....................................................20
TikTok, Safety and Civility
(Mar. 2023) .........................................................5, 6
Brendesha Tynes et al.,
Adolescence, race, and
ethnicity on the Internet: A
comparison of discourse in
monitored vs. unmonitored
chat rooms, 25(6) J. Applied
Developmental Psych. 667
(2004) ....................................................................11
xvi
Brendesha M. Tynes et al., An
Unwelcomed Digital Visitor
in the Classroom: The
Longitudinal Impact of
Online Racial
Discrimination on Academic
Motion, 44(4) Sch. Psych.
Rev. 407 (Oct. 27, 2015) .......................................16
Brendesha M. Tynes et al.,
Online Racial
Discrimination and
Psychological Adjustment
Among Adolescents, 43(6) J.
Adolescent Health 565 (Aug.
27, 2008) ...............................................................15
Brendesha Tynes et al.,
Trajectories of Online Racial
Discrimination and
Psychological Functioning
among African American
and Latino Adolescents,
91(5) Child Dev. 1577 (2020) ...........................9, 16
U.S. Att’ys Off. E.D.N.Y., Social
Media Influencer Douglass
Mackey Convicted of Election
Interference in 2016
Presidential Race, Dep’t of
Just. (Mar. 31, 2023)............................................23
xvii
Ian Vandewalker, Digital
Disinformation and Voter
Suppression, Brennan Ctr.
for Just. (Sept. 2, 2020)........................................21
George Veletsianos et al.,
Women Scholars’
Experiences with Online
Harassment and Abuse:
Self-Protection, Resistance,
Acceptance, and Self-Blame,
20(12) New Media & Soc’y
4689 (2018) ...........................................................18
White House, Big Data: Seizing
Opportunities, Preserving
Values (May 2014) ...............................................25
White House Off. of Sci. & Tech.
Pol’y, Blueprint for an AI
Bill of Rights (Oct. 2022) .....................................29
Kimmy Yam, Right-Wing
Disinformation Ramps Up
on WeChat Ahead of
Midterms, Report Finds,
NBC News (Oct. 3, 2022) .....................................23
YouTube, Elections
Misinformation policies .......................................20
YouTube, Hate speech policy.......................................6
xviii
YouTube, How does YouTube
protect the community from
hate and harassment? ........................................5, 6
1
STATEMENT OF INTEREST
OF AMICUS CURIÆ
Formed in 1963, the Lawyers’ Committee for
Civil Rights Under Law is a nonpartisan, nonprofit
organization using legal advocacy to pursue racial
justice. It fights inside and outside the courts to
ensure that Black people and other people of color
have the voice, opportunity, and power to make the
promises of American democracy real. To that end,
the Lawyers’ Committee has frequently represented
parties or served as amicus curiæ in this Court. See,
e.g., Students for Fair Admissions, Inc. v. Univ. of
N.C., 600 U.S. 181 (2023); Shelby Cnty., Ala. v.
Holder, 570 U.S. 529 (2013); Arizona v. Inter Tribal
Council of Ariz., 570 U.S. 1 (2013). The Lawyers’
Committee is also a leader on voting rights and online
civil-rights issues. It regularly participates in cases
involving online discrimination, voter intimidation,
and threats aimed at Black communities and other
communities of color. See, e.g., Counterman v.
Colorado, 600 U.S. 66 (2023); Gonzalez v. Google LLC,
598 U.S. 617 (2023); 303 Creative LLC v. Elenis, 600
U.S. 570 (2023); Nat’l Coal. on Black Civic
Participation v. Wohl, No. 20 CIV. 8668 (VM), 2023
WL 2403012 (S.D.N.Y. Mar. 8, 2023); Dumpson v.
Ade, No. CV 18-1011 (RMC), 2019 WL 3767171
(D.D.C. Aug. 9, 2019).1
1 No counsel for a party authored this brief in whole or
in part. No person or entity, other than amicus curiæ, its
members, or its counsel, made any monetary contribution to the
preparation or submission of this brief.
2
SUMMARY OF ARGUMENT
Texas and Florida’s laws (H.B. 20 and S.B.
7072, respectively) contain a combination of legal
prohibitions and penalties on online platforms’ ability
to curate, take down, promote, and demote content
generated by users. These provisions vitiate the
ability of online businesses to remove content spewing
hate and disinformation on their platforms by making
it legally or practically impossible to engage in
content moderation. See, e.g., Br. for Pet’r’s at 36, 43,
NetChoice v. Paxton, No. 22-555, Nov. 30, 2023; Br.
for Resp’s at 8, Moody v. NetChoice, 22-277, Nov. 30,
2023. The Lawyers’ Committee has grave concerns
that, if left standing, H.B. 20 and S.B. 7072 would also
specifically harm the electoral rights and rights to
freedom of speech and association of Black people and
other people of color.
Black people and other people of color
experience a different quantity and quality of hateful
and discriminatory speech online than other people.
Online
hate
and
harassment—even
when
constitutionally protected—have a profound chilling
effect on the free expression of groups that have
experienced longstanding discrimination. In fact,
that is often the intent of such speech. Online
disinformation and voter intimidation targeted at
Black people and people of color similarly impair the
ability of these communities to support and advocate
for the representatives of their choice.
Online
platforms have a role to play in protecting civil rights,
and many platforms have policies and procedures
that attempt to curb these harms.
This self-
3
regulation, while often insufficient and imperfect in
practice, is nevertheless a necessary tool to foster an
internet where Black people and other people of color
can freely participate.
We urge the Court to recognize that H.B. 20
and S.B. 7072 fail First Amendment strict scrutiny
because they prohibit expressive speech, inhibit
expressive association, and are content-based.
However, such a ruling should be narrow in scope so
that it does not inadvertently inhibit the ability of
governments to regulate harmful conduct and
unprotected speech. Just because activity occurs on
the internet does not necessarily give rise to a First
Amendment issue. Not all laws governing online
businesses merit strict scrutiny or even regulate
speech in the first place. Online publishers, just like
their offline counterparts, need to comply with
generally applicable laws. See Pittsburgh Press Co. v.
Pittsburgh Comm’n on Hum. Rel., 413 U.S. 376, 38283 (1973).
Even when speech is involved or
incidentally affected, the First Amendment does not
bar myriad civil-rights and consumer-protection laws,
including prohibitions of discrimination, see Rumsfeld
v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47,
62 (2006); voting rights protections, see Burson v.
Freeman, 504 U.S. 191, 198-208 (1992) (plurality
opinion); prohibitions of fraudulent statements, see
United States v. Alvarez, 567 U.S. 709, 722-23 (2012)
(plurality opinion); regulations of unfair or deceptive
practices, see 44 Liquormart, Inc. v. Rhode Island, 517
U.S. 484, 501 (1996); and other content-neutral time,
place, and manner regulations of speech, like
restricting the amplification of speech, see Ward v.
4
Rock Against Racism, 491 U.S. 781, 791-92 (1989).
The Court should recognize that declaring H.B. 20
and S.B. 7072 to be unconstitutional will not inhibit
governments from regulating online businesses in
other ways, including to prohibit discrimination
online.2
Lawyers’
Committee
supports
transparency
requirements
for
content
moderation.
Transparency
requirements would assist the public in ensuring that the voices
of Black people and other people of color are not unfairly silenced
by content-moderation systems. See, e.g., Oliver L. Haimson et
al., Disproportionate Removals and Differing Content
Moderation Experiences for Conservative, Transgender, and
Black Social Media Users: Marginalization and Moderation
Gray Areas, 5 Proc. ACM on Hum. Comput. Interaction 466:1,
466:3 (2021); see also Jessica Guynn, Facebook while black:
Users call it getting ‘Zucked,’ say talking about racism is censored
as hate speech, USA Today (July 9, 2020, 6:17 p.m.),
https://www.usatoday.com/story/news/2019/04/24/faceboo
kwhile-black-zucked-users-say-they-get-blocked-racism-discussi
on/2859593002/ (users who tried to call out or discuss their
experiences with discrimination were likely to be incorrectly
flagged for violating hate-speech rules); Elizabeth Dwoskin et
al., Facebook’s race-blind practices around hate speech came at
the expense of Black users, new documents show, Wash. Post
(Nov.
21,
2021,
8:00
a.m.),
https://www.washingtonpost.com/technology/2021/11/21/faceboo
k-algo rithm-biased-race/.
2
5
ARGUMENT
I.
Barring online businesses from removing
hate and discrimination on their
platforms would impair the free
expression and association of Black
people and other people of color.
A.
Upholding H.B. 20 and S.B. 7072
would undermine the ability of
online businesses to self-regulate
and proactively remove hateful
content from their platforms.
Online businesses currently have the ability to
make their platforms safer for users. Most major
social media platforms have policies that prohibit
race-based hateful and discriminatory content. See,
e.g., Meta, Hate Speech3; TikTok, Safety and Civility
(Mar. 2023);4 YouTube, How does YouTube protect the
community from hate and harassment?5
Their
policies describe prohibiting the use of hateful slurs,
harmful stereotypes, dehumanizing content (like
saying or implying a person is physically, mentally, or
morally inferior, or calling them degrading terms,
such as criminals, animals, and inanimate objects,
because of a protected characteristic), promoting
https://transparency.fb.com/policies/communitystand ards/hate-speech/ (last accessed Dec. 5, 2023).
3
4
https://www.tiktok.com/communityguidelines/en/safety-civility/ (last accessed Dec. 5, 2023).
https://www.youtube.com/howyoutubeworks/ourcommitments/standing-up-to-hate/ (last accessed Dec. 5, 2023).
5
6
hateful ideologies like Nazism, claiming racial
supremacy, or calling for segregation. See Meta, Hate
Speech, supra; TikTok, Safety and Civility, supra;
YouTube, How does YouTube protect, supra;
YouTube, Hate speech policy.6 Platforms also prohibit
denying that well-documented violent events took
place, like school shootings, the Holocaust, or the
Rwandan genocide. See TikTok, Safety and Civility,
supra; YouTube, How does YouTube protect, supra.
Predictably, those platforms that do not
remove hateful and harassing content, or that
deprioritize removing that content, end up with more.
See, e.g., Sheera Frenkel & Kate Conger, Hate
Speech’s Rise on Twitter Is Unprecedented,
Researchers Find, N.Y. Times (Dec. 2, 2022) (slurs
against gay men and antisemitic posts increased, and
slurs against Black Americans tripled);7 Cristiano
Lima & David DiMolfetta, Antisemitic tweets soared
on Twitter after Musk took over, study finds, Wash.
Post (Mar. 20, 2023, 9:02 a.m.) (study showing 105
percent increase in posts containing antisemitic
language over four months).8
Given these circumstances, and many
platforms’ mixed efforts to address race-based hateful
https://support.google.com/youtube/answer/2801939
(last accessed Dec. 5, 2023).
6
7
https://www.nytimes.com/2022/12/02/technology/
twitter-hate-speech.html.
https://www.washingtonpost.com/politics/2023/
03/20/antisemitic-tweets-soared-twitter-after-musk-took-overstudy-finds/.
8
7
and harassing content, that content is still pervasive
online. This is particularly true for Black people and
other people of color, who experience some of the most
egregious forms of online hate and its attendant
effects. But prohibiting online businesses from selfregulating or making it so difficult as to be practically
impossible—which is what H.B. 20 and S.B. 7072
would do—would only increase the flood of harmful
content.
On its face, H.B. 20 would prohibit social media
platforms from acting on content they deem hateful or
discriminatory or that otherwise violates the
platforms’ own terms of service. It flatly bars such
platforms from removing, demonetizing, de-boosting,
or otherwise restricting content based on “the
viewpoint of the user or another person” or “the
viewpoint represented in the user’s expression or
another person’s expression.” Tex. Civ. Prac. & Rem.
Code §§ 143A.001, 143A.002 (West 2021).
SB 7072 does not as obviously prohibit social
media platforms from moderating hateful and
discriminatory content, but the practical result is the
same. It requires social media platforms to “apply
censorship, deplatforming, and shadow banning
standards in a consistent manner among its users on
the platform” but does not define “consistent
manner.” Fla. Stat. § 501.2041(2)(b) (2022). It also
prohibits social media platforms from acting on
content from any “journalistic enterprise” and broadly
defines what constitutes a “journalistic enterprise”
based on the number of published words, video, or
8
audio, and the number of subscribers, active users,
viewers, or listeners. Id. § 501.2041(1)(d).
H.B. 20 would make content moderation
impossible, and S.B. 7072 would have the same
practical effect through its ambiguous standards.
Texas and Florida’s actions therefore risk further
silencing Black people and other people of color
online, making it less safe for them to engage online,
and harming their “freedom to engage in association
for the advancement of beliefs and ideas.” NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958).
B.
Black people and other people of
color experience a significant
amount of speech involving hate
and discrimination online.
Black people and other people of color in the
United States have long experienced race-based
harassment, hate, and discrimination. Today, these
communities continue to face hate and harassment in
their daily lives, including online. See Cmty. Rel.
Serv., 2022 FBI Hate Crime Statistics, Dep’t. of Just.
(Oct. 30, 2023) (race was the most common motivator
of hate crimes in 2022, and anti-Black incidents “were
more than three times higher than the next highest
racial or ethnic category”).9 For Black people, hate
and harassment online can include traumatic
experiences like regularly being targeted by racial
slurs and being “stereotyped as unintelligent, as
https://www.justice.gov/crs/highlights/2022-hatecrime-statistics.
9
9
criminals, and as lazy,” represented as animals, or
mocked with images using blackface. Brendesha
Tynes et al., Trajectories of Online Racial
Discrimination and Psychological Functioning among
African American and Latino Adolescents, 91(5) Child
Dev. 1577, 1578 (2020). The Lawyers’ Committee is
concerned that the challenged laws would preclude
the operators of the largest social media websites
from effectively self-regulating their own platforms
and thus increase both the volume and unjustifiable
effects of such race-based hate and harassment.
Online hate, harassment, and discrimination
comes in many forms. It often includes disparaging
or discriminatory remarks, symbols, images, or other
behaviors based on and directed at listeners, viewers,
or readers because of their race or color. See, e.g.,
Tynes et al., Trajectories of Online Racial
Discrimination, supra, at 1578. It also is significantly
more common and explicit online than offline because
of online anonymity. See, e.g., Brian Keum &
Matthew J. Miller, Racism on the Internet:
Conceptualization
and
Recommendations
for
Research, 8(6) Psych. of Violence 782, 783 (2018).
Black people and other people of color experience
online hate and discrimination not only when it is
aimed at them individually, but when they hear or see
discriminatory or disparaging behaviors directed at
others like them. Tynes et al., Trajectories of Online
Racial Discrimination, supra, at 1578.
These experiences can include being “mocked
in historically dehumanizing ways such as blackface”
and “overrepresented in degrading images and text
10
(e.g., memes) that are produced as racial humor.” Id.
Latino people experience being “mocked for having
perceived stereotypical careers like landscaping . . . or
large families.” Id. One study examined several
racial and ethnic groups’ exposure to online racial
discrimination during the COVID-19 pandemic and
found that Black people in the United States
experienced the most, “corresponding to the vast
prevalence of online hatred directed toward Black
people throughout US history.” Alyan Layug et al.,
The Impacts of Social Media Use and Online Racial
Discrimination on Asian American Mental Health:
Cross-sectional Survey in the United States During
COVID-19, 6(9) JMIR Formative Rsch. 1, 21 (2022).
Young Black people in particular regularly
confront online speech involving hate and
discrimination based on their race. For example, in
one study, 45% of Black adolescents reported at least
one instance of online racial discrimination over a
two-week period in 2020. See Juan Del Toro & MingTe Wang, Online Racism and Mental Health Among
Black American Adolescents in 2020, 62(1) J. Am.
Acad. Child Adolescent Psych. 25, 29 (2023); see also,
e.g., Alvin Thomas, Online Racial Harassment Leads
to Lower Academic Confidence for Black and Hispanic
Students, The Conversation (Jan. 23, 2023, 8:23 a.m.)
(“Black and Hispanic teens who used social media
11
more were more likely than not to encounter online
racial harassment or discrimination.”).10
Many Black adolescents experience multiple
incidents of racial discrimination per day, including
online.
See, e.g., Devin English et al., Daily
multidimensional racial discrimination among Black
U.S. American adolescents, 66 J. Applied
Developmental Psych. 1, 8 (2020) (Black adolescents
reported an average of 70 experiences of racial
discrimination in two weeks, including online
discrimination); see also Del Toro & Wang, supra, at
32-34. Even in the early days of the internet,
participating in unmonitored chat rooms involved a
59% chance of being exposed to negative remarks
about a particular racial or ethnic group. See
Brendesha Tynes et al., Adolescence, race, and
ethnicity on the Internet: A comparison of discourse in
monitored vs. unmonitored chat rooms, 25(6) J.
Applied Developmental Psych. 667, 673 (2004).
Given its frequency, it is not surprising that
hateful and discriminatory speech experienced by
Black people and other people of color often rises to
the level of harassment. Thirty-eight percent of Black
American adults experienced online harassment over
12 months, including being called offensive names,
physically threatened, harassed, stalked, sexually
harassed, doxxed, or swatted. See Anti-Defamation
League Ctr. for Tech. & Soc’y, Online Hate and
10 https://theconversation.com/online-racial-harassment-
leads-to-lower-academic-confidence-for-black-and-hispanic-stu
dents-197515.
12
Harassment: The American Experience 2023 19 (June
2023).11 Black women and other women of color are
even more likely to face such risks. See Amnesty Int’l,
Troll Patrol Findings: Using Crowdsourcing, Data
Science & Machine Learning to Measure Violence and
Abuse against Women on Twitter, Amnesty Decoders
(analyzing millions of tweets and finding that Black
women were 84% more likely to be mentioned in
abusive tweets than white women).12 In a study of the
2020 congressional election, women of color seeking
office were five times more likely than other
candidates to experience online abuse related to their
gender and racial identities. See Dhanaraj Thakur &
DeVan Hankerson Madrigal, An Unrepresentative
Democracy: How Disinformation and Online Abuse
Hinder Women of Color Political Candidates in the
United States, Ctr. for Democracy & Tech., 8 (2023);13
see also Rebekah Herrick et al., Gender and Race
https://www.adl.org/sites/default/files/pdfs/202306/Online-Hate-and-Harassmen-2023_0.pdf.
“Doxing is the
broadcasting of private or identifying information about an
individual, group, or organization with the intent that the
information be used against the target for an unlawful purpose.”
Id. “Swatting is the deliberate and malicious act of reporting a
false crime or emergency to evoke an aggressive response (often
a SWAT team) from a law enforcement agency to a target’s
residence or place of work to harass and intimidate them.” AntiDefamation League Ctr. for Tech. & Soc’y, What Is Swatting?
(Aug. 18, 2022), https://www.adl.org/resources/blog/whatswatting.
11
12 https://decoders.amnesty.org/projects/trollpatrol/findings (last accessed Dec. 6, 2023).
https://cdt.org/wp-content/uploads/2022/10/updateanunrepresentativedemocracy-a11y-102622-1710.pdf.
13
13
Differences in Mayors’ Experiences of Violence, Ctr. for
Am. Women & Politics (2022) (study of U.S. mayors
showed women of color experienced more threats than
other groups).14
Perpetrators of white-supremacist attacks
commonly publicize their actions and philosophies
through online speech involving social media as well.
Footage of the racist mass shooting at a Buffalo, New
York, supermarket in May 2022 was livestreamed by
the perpetrator and spread with great speed across
the internet through Facebook, Twitter, Instagram,
Reddit, Telegram, Bitchute, and Gab. See Footage of
Buffalo Attack Spread Quickly Across Platforms, Has
Been Online for Days, Anti-Defamation League (May
20, 2022).15 The perpetrator of the 2019 mass
shooting at a New Zealand mosque similarly
livestreamed his attack on Facebook. See Graham
Macklin, The Christchurch Attacks:
Livestream
Terror in the Viral Video Age, 12(6) CTC Sentinel 18,
18 (July 2019).16 Social media websites are rife with
promotions of white supremacy, including videos that
espouse the racist and anti-Semitic “Great
Replacement” conspiracy theory, that express support
for leaders like Adolf Hitler, and that abuse people
based on their race or color. See Ciarán O’Connor,
https://cawp.rutgers.edu/research/cawp-grants-andawards/cawp-research-grants/research-briefs/gender-and-racedifferences-mayors-experiences.
14
15 https://www.adl.org/resources/blog/footage-buffaloattack-spread-quickly-across-platforms-has-been-online-days.
https://ctc.westpoint.edu/christchurch-attackslivestream-terror-viral-video-age/.
16
14
Hatescape: An In-Depth Analysis of Extremism and
Hate Speech on TikTok, Inst. for Strategic Dialogue, 5
(Aug. 24, 2021).17
In short, Black people and other people of color
are particularly subject to online hate and
discrimination based on their race or color. Online
platforms have not done enough to address these
harms, but that does not mean that what they have
done is worthless or that they cannot do more. The
Texas and Florida laws would have a regressive effect
and close off any possibility of improvement. As
explained below, hate and discrimination would
consequently shut out Black people’s voices from
online platforms.
C.
Online hate and discrimination
harm Black people and other
people of color and have chilling
effects on their free expression and
civic participation.
Online
speech
involving
hate
and
discrimination has widespread consequences. Cf.,
e.g., Maeve Duggan, Online Harassment 2017, Pew
Rsch. Ctr., 20 (July 11, 2017) (20% of Americans said
online harassment led to problems with friends and
family, in romantic relationships, at work, or in
school; caused a financial loss; or contributed to
https://www.isdglobal.org/wp-content/uploads/
2021/08/HateScape_v5.pdf.
17
15
trouble finding a job or housing).18 This speech has
particularly devastating effects on the lives of Black
people and other people of color.
Experiencing or witnessing discrimination has
negative psychological, physiological, and economic
effects, including stress, depression, and anxiety. See,
e.g., Layug et al., supra, at 20 (finding that “individual
and vicarious forms of online discrimination
experienced during the COVID-19 pandemic were . . .
positively associated with [secondary traumatic
stress], depression, and anxiety”); Tiani Perkins et al.,
Gender and Racial Identity Moderate the Effects of
Online and Offline Discrimination on Mental Health:
Dismantling Systems of Racism and Oppression
During Adolescence, 32(1) J. of Rsch. on Adolescence
244, 250-51 (2022) (finding that online discrimination
against Black college students is positively associated
with symptoms of depression and anxiety);
Brendesha Tynes et al., Online Racial Discrimination
and Psychological Adjustment Among Adolescents,
43(6) J. Adolescent Health 565, 567 (2008)
(hierarchical linear regressions reveal that individual
online racial discrimination is significantly related to
depression and anxiety). For Black people, these
mental-health effects are even worse than for other
populations. See id.
Online
speech
involving
hate
and
discrimination is particularly damaging for younger
people of color, who—like all young people—spend a
https://www.pewresearch.org/internet/2017/07/
11/online-harassment-2017/.
18
16
large amount of time online. See Tynes et al.,
Trajectories of Online Racial Discrimination, supra,
at 1577 (“95% of adolescents have access to a smart
phone and nine out of 10 go online at least ‘multiple
times per day.’”). One study found that online racial
harassment or discrimination causes Black and
Hispanic teens to doubt their academic skills and
harms their mental health. See Thomas, supra;
Brendesha M. Tynes et al., An Unwelcomed Digital
Visitor in the Classroom: The Longitudinal Impact of
Online Racial Discrimination on Academic Motion,
44(4) Sch. Psych. Rev. 407, 418 (2015) (elevated rates
of online racial discrimination experienced by Black
American adolescents directly correlate to decreased
academic motivation). Another study concluded that,
for students of color, experiencing racialized
aggression on social media is positively related to
increased mental-health issues.
See Adam M.
McCready et al., Students of Color, Mental Health,
and Racialized Aggressions on Social Media, 58(2) J.
Student Aff. Rsch. & Prac. 179, 189 (2021). Different
researchers found not only that Black youths
experience a level of online racial discrimination not
fully explained by the time they spent online or by
general cybervictimization, but also that this racial
discrimination predicts poorer same-day and nextday mental health among Black youths, though not
among white youths. See Del Toro & Wang, supra, at
34.19 Another study found that experiencing online
racism significantly predicts suicidal ideation across
19 The existing mental health of those Black youths did
not, in contrast, predict their online racial-discrimination
experiences. Id.
17
younger Black, Asian, and Latino groups. See Brian
TaeHyuk Keum, Impact of Online Racism on Suicide
Ideation Through Interpersonal Factors Among
Racial Minority Emerging Adults: The Role of
Perceived
Burdensomeness
and
Thwarted
Belongingness, 38(5-6) J. Interpersonal Violence
4537, 4553 (2022). The constant stress from routine
exposure to racial discrimination is also linked to
higher rates of diseases such as hypertension in Black
people. See, e.g., Sherman James, John Henryism
and the health of African Americans, 18 Culture, Med.
& Psychiatry 163, 178 (1994); see also Ctr. for Fam.
Rsch., Skin-deep Resilience, Univ. of Ga. (Mar. 2021)
(the additional effort required to overcome adversity
affects health outcomes in Black people, including
cellular aging, diabetes risk, and respiratory
infection).20
These psychological and emotional effects risk
causing Black people to withdraw from online
discourse, affecting their rights to engage in the
marketplace of ideas and to associate with others. See
Patterson, 357 U.S. at 460 (“It is beyond debate that
freedom to engage in association for the advancement
of beliefs and ideas is an inseparable aspect of . . .
freedom of speech.”); see also, e.g., 303 Creative LLC,
600 U.S. at 586 (“[T]he First Amendment protects
acts of expressive association.”). In the United States,
27% of adults say they have refrained from posting
something online, and 13% elected to stop using an
http://cfr.uga.edu/wp-content/uploads/sites/
18/2021/03/ResearchDigest-Skin-Deep.pdf (last accessed Dec. 5,
2023).
20
18
online service after witnessing harassment. Duggan,
supra, at 11. Studies show that when confronted with
online harassment, women are more likely to selfcensor or withdraw from online platforms altogether.
See Kalyani Chadha et al., Women’s Responses to
Online Harassment, 14 Int’l J. Commc’ns 239, 247-48
(2020); George Veletsianos et al., Women Scholars’
Experiences with Online Harassment and Abuse: SelfProtection, Resistance, Acceptance, and Self-Blame,
20(12) New Media & Soc’y 4689, 4692 (2018)
(harassment of women scholars led to their avoiding
certain social media platforms and “turning to
silence”); Amanda Lenhart, Online Harassment,
Digital Abuse, and Cyberstalking, Data & Soc’y Rsch.
Inst., 5 (Nov. 21, 2016) (41% of women ages 15-29 selfcensor).21 Indeed, numerous prominent women of
color have withdrawn from online discourse as a
result of online harassment.
See, e.g., Jason
Guerrasio, ‘Star Wars’ actress Kelly Marie Tran Left
Social Media After Racist and Sexist Trolls Drove Her
to Therapy, Business Insider (Mar. 3, 2021, 1:33
p.m.);22 James Byrd Jr. Center to Stop Hate at the
Lawyers’ Committee for Civil Rights Under Law,
Hate in Elections, 11 (Sept. 2020) (Black female
lawmaker in Vermont left office after severe
21 https://www.datasociety.net/pubs/oh/
Online_Harassment_2016.pdf.
https://www.insider.com/kelly-marie-tran-racistsexist-trolls-social-media-2021-3#:~:text=Tran%2C%2032%
2C%20said%20she%20constantly,had%20to%20go%20to%20th
erapy.
22
19
harassment online and in person);23 Lucina Fisher &
Brian McBride, ‘Ghostbusters’ Star Leslie Jones Quits
Twitter After Online Harassment, ABC News (July 20,
2016, 6:54 a.m.).24 Journalists have also receded from
online interactions after experiencing online
harassment. Julie Posetti & Nabeelah Shabbir, The
Chilling: A Global Study of Online Violence Against
Women Journalists, Int’l Ctr. for Journalists, 12 (Nov.
2022) (30% of survey respondents self-censor on social
media, and 20% withdrew from online interaction).25
Online businesses should retain the ability to
remove race-based hate and discrimination on their
platforms, legally and practically. If they lose that
ability, Black people and other people of color will
suffer negative repercussions to their right to engage
in discourse and associate with others online.
II.
Online disinformation and voter
intimidation threaten the ability of Black
people and other people of color to
exercise fundamental civil rights.
In addition to hateful and discriminatory
online content that harms Black people and other
https://lawyerscommittee.org/wpcontent/uploads/2020/09/LC2_HATE-INELECTIONS_RPT_E_HIGH-1.pdf.
23
24 https://abcnews.go.com/Entertainment/ghostbustersstarleslie-jones-quits-twitter-online-harassment/story?id=40698
459.
https://www.icfj.org/sites/default/files/202211/ICFJ_UNESCO_The%20Chilling_2022_1.pdf.
25
20
people of color in their private lives, a substantial
amount of activity directed at these communities
seeks to prevent them from exercising fundamental
public rights. Most obviously, disinformation and
voter intimidation are used to interfere with their
voting rights.
Though much of this voter interference is
illegal, it is not always preventable by outside parties
and after-the-fact litigation may not be feasible. It is
more efficient and rights-protecting when online
businesses can also self-police to remove this kind of
harmful content from their platforms. Indeed, most
major social media platforms prohibit election-related
disinformation. See Meta, Misinformation: Policy
details;26 YouTube, Elections Misinformation policies;
TikTok, Combating misinformation.27 They prohibit
voter-suppressive
acts
like
spreading
false
information about the dates, locations, methods, and
qualifications for voting, encouraging interference
with election administration, and promoting false
information about dangers at the polls to intimidate
voters. See, e.g., YouTube, Elections Misinformation,
supra;28 Meta, Misinformation, supra. Handcuffing
online businesses so that they can no longer remove
election-related disinformation will only increase its
26 https://transparency.fb.com/policies/community-stand
ards/misinformation (last accessed Dec. 5, 2023).
27 https://www.tiktok.com/transparency/enus/combating-misinformation/ (last accessed Dec. 5, 2023).
28 https://support.google.com/youtube/answer/10835034?
s jid=1846092111824394653-NA (last accessed Dec. 5, 2023).
21
volume and threat and endanger Black people’s right
to vote.
“[V]oting is of the most fundamental
significance under our constitutional structure.” Ill.
State Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 184 (1979); see also Yick Wo v. Hopkins, 118
U.S. 356, 370 (1886) (“the political franchise of voting”
is “a fundamental political right”). This is because the
right to vote “is preservative of other basic civil and
political rights.” Kramer v. Union Free Sch. Dist. No.
15, 395 U.S. 621, 626 (1969) (cleaned up). As a result,
“any alleged infringement of the right of citizens to
vote must be carefully and meticulously scrutinized.”
Id. (cleaned up).
Nevertheless, using false or misleading
statements online to disenfranchise voters of color is
commonplace. See generally Sylvia Albert et al., As a
Matter of Fact: The Harms Caused by Election
Disinformation, Common Cause Educ. Fund, 12-29
(Oct.
2021);29
Ian
Vandewalker,
Digital
Disinformation and Voter Suppression, Brennan Ctr.
for Just. (Sept. 2, 2020).30 Sometimes such content
stems from illegal foreign activity. For example, in
2016, “no single group of Americans was targeted by
[Russia’s Internet Research Agency] information
operatives more than African-Americans.” Russian
29 https://www.commoncause.org/wpcontent/uploads/2021/10/CC_AsaMatterofFact_FINAL_10.27.21
.pdf.
https://www.brennancenter.org/our-work/researchreports/digital-disinformation-and-vote-suppression.
30
22
Active Measures Campaigns and Interference in the
2016 U.S. Election, Vol. 2: Russia’s Use of Social
Media with Additional Views, S. Rep. No. 116-290, at
6 (2020).31 This included “voter suppressive content
intended to dissuade African-American voters from
participating in the 2016 presidential election . . . .”
Id. at 59. Indeed, much of the Russian online effort,
involving Instagram, Twitter, and Facebook in
particular, focused on race. See id. at 35, 38-49.
Other times, online voter suppression involves
fraudulent information about voting at the most local
level, where online speakers can easily disseminate
their falsehoods and then try to hide. For example, in
Detroit in 2020, stories on Facebook aimed at Latinos
told them “it was dangerous to vote” because “the
government would record who people voted for and
they might face consequences.” Ashley Nerbovig,
Michigan’s immigrant communities hit with
misinformation on closed platforms, Detroit Free
Press (Nov. 27, 2020).32 A similar effort involved false
online statements that immigration officers would be
monitoring voting.
E.g., Blake Peterson, ICE,
Dispelling Rumors, Says It Won’t Patrol Polling
31 https://www.intelligence.senate.gov/sites/default/
files/documents/Report_Volume2.pdf.
https://www.freep.com/story/news/politics/elections/
2020/11/27/michigan-election-misinformation-immigrantwhatsapp/6393693002/ (last accessed Dec. 5, 2023).
32
23
Places, ProPublica (Nov. 2, 2019, 4:13 p.m.).33
Another that same year targeted the nation’s largest
Muslim community. See id. (“WhatsApp helped to
spread a debunked text that targeted Dearborn,
[Michigan,] residents . . . . that read:
‘URGENT
ALERT: Due to a typographical error, Scantron
ballots being used for the 2020 Election has swapped
sensors. If you are intending on voting for Joe Biden,
you must bubble in Trump and vice versa. – Federal
Berue [sic] of Investigation.’”); see also generally
Kimmy Yam, Right-Wing Disinformation Ramps Up
on WeChat Ahead of Midterms, Report Finds, NBC
News (Oct. 3, 2022, 5:11 p.m.).34 Likewise, in 2016, a
social media “influencer” circulated a variety of
images and tweets that were likely intended to
influence communities of color to “Vote from Home”
online or by text message, which, of course, they could
not do. See U.S. Att’ys Off. E.D.N.Y., Social Media
Influencer Douglass Mackey Convicted of Election
Interference in 2016 Presidential Race, Dep’t of Just.
(Mar. 31, 2023).35 These activities amount to using
fraud to deprive people of color of their right to vote.
Such disenfranchisement efforts often violate
the law. Cf. Nat’l Coal. on Black Civic Participation,
https://www.propublica.org/article/ice-dispellingrumors-says-it-wont-patrol-polling-places.
33
34 https://www.nbcnews.com/news/asian-america/rightwing-disinformation-ramps-wechat-ahead-midterms-report-fin
ds-rcna50539.
https://www.justice.gov/usao-edny/pr/social-mediainfluencer-douglass-mackey-convicted-election-interference2016.
35
24
2023 WL 2403012, at *22 (robocall that deceptively
threatened “that a voter’s private information will
become exposed if that person votes by mail” violated
Voting Rights Act). But even where there is a
violation of law, litigation may be infeasible. The
efforts are not always blatant; the scale of the
disinformation may be too large; it may be impossible
to identify the perpetrators; and prosecutors and civil
society have limited resources with which to pursue
wrongdoers. Deceptive voter suppression can spread
at the speed of the internet on the eve of an election,
and judicial relief may be too slow to prevent harm.
Social media companies therefore play a critical role
in protecting Black people and other people of color
from efforts to disenfranchise them.
This—and the long history of attempts to
disenfranchise Black people and other people of
color—means that restricting private actors in how
they assess and mitigate the risks created by this
speech is problematic. Online platforms have not
done enough to protect democracy and the voting
rights of Black people. But while their efforts are
lacking, the Texas and Florida statutes would
eviscerate the efforts that have been made and the
potential for improvements. The Court should reject
Texas and Florida’s attempts to remove this shield
from the armory of civil-society protections.
25
III.
Striking down the Texas and Florida
laws should not prevent lawmakers from
regulating social media platforms,
including to prohibit online
discrimination.
Texas has argued that “by characterizing the
central feature of the platforms—hosting third-party
content—as speech, the federal government all but
immunizes social-media companies from any
substantive regulation.” Suppl. Br. for Resp’t at 1,
NetChoice v. Colmenero, No. 22-555, Aug. 28, 2023
(emphasis in original). This is incorrect. The Texas
and Florida laws trigger—and fail—heightened First
Amendment scrutiny because they prohibit
expressive speech, inhibit expressive association, and
are content-based. However, online businesses must
still comply with laws that impose generally
applicable duties on many types of businesses,
including laws prohibiting discrimination and
deceptive practices. These laws are increasingly
important as online platforms incorporate automated
decision-making processes into their businesses,
sometimes resulting in “digital[] redlining” and other
harms to Black people. White House, Big Data:
Seizing Opportunities, Preserving Values, 53 (May
2014).36 The Court should issue a narrow holding
that does not inhibit the ability of governments to
regulate conduct by online businesses, such as
https://obamawhitehouse.archives.gov/sites/default
/files/docs/big_data_privacy_report_may_1_2014.pdf.
36
26
prohibiting discrimination and deceptive practices or
protecting data privacy.
The Texas and Florida laws call out for First
Amendment strict scrutiny. See, e.g., Reed v. Town of
Gilbert, 576 U.S. 155, 163 (2015) (“Government
regulation of speech is content based if a law applies
to particular speech because of the topic discussed or
the idea or message expressed.”); Rumsfeld, 547 U.S.
at 66 (First Amendment applies to “inherently
expressive” conduct). The states must therefore
demonstrate that S.B. 7072 and H.B. No. 20 further
“a compelling governmental interest” and that the
statutes are “narrowly tailored to achieve that
interest.” Reed, 576 U.S. at 171 (cleaned up). The
states cannot meet these criteria for many reasons,
including the lack of any compelling interest on the
part of Florida or Texas to impose advance
restrictions on the editorial and curatorial decisions
of the private owners and operators of the few
websites singled out by those statutes.
But not all laws regulating online businesses
implicate First Amendment rights. See, e.g., Arcara
v. Cloud Books, Inc., 478 U.S. 697, 706 (1986)
(“[E]very civil and criminal remedy imposes some
conceivable burden on First Amendment protected
activities.”); United States v. O’Brien, 391 U.S. 367,
376 (1968) (“We cannot accept the view that an
apparently limitless variety of conduct can be labeled
‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea.”). Indeed, “words
can in some circumstances violate laws directed not
against speech but against conduct . . . .” R.A.V., 505
27
U.S. at 389; Pittsburgh Press, 413 U.S. at 382 (noting
press has “no special immunity” from laws of general
applicability) (cleaned up). For example, “[t]he fact
that [an antidiscrimination law] will require an
employer to take down a sign reading ‘White
Applicants Only’ hardly means that the law should be
analyzed as one regulating the employer’s speech
rather than conduct.” Rumsfeld, 547 U.S. at 62.
Likewise, not all laws that implicate First
Amendment rights must undergo strict scrutiny. See,
e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of New York, 447 U.S. 557, 561-66 (1980)
(holding commercial speech undergoes intermediate
scrutiny). For example, this Court has recognized
that content-neutral regulation of the amplification of
speech can be permissible. See Ward, 491 U.S. at 79192 (holding that the government may impose
reasonable restrictions on the time, place, or manner
of protected speech). And even strict scrutiny is not a
death sentence for a law of truly compelling
governmental need and narrow focus. See, e.g.,
Burson, 504 U.S. at 199-211 (plurality opinion)
(upholding, after strict scrutiny, ballot-privacy laws
imposing advance restrictions on noncommercial
speech near polling places).
Accordingly, conduct by social media
companies such as collecting, retaining, and selling
data; advertising; or offering or implementing
targeted advertising does not require First
Amendment protection, even if the conduct were
somehow considered to express ideas about how the
websites operate. See, e.g., Ward, 491 U.S. at 791-92
28
(upholding city’s sound-amplification guidelines as
reasonable time, place, manner restrictions).
Lawmakers are therefore free, for example, to
regulate social media platforms’ data-collection,
retention, and sharing practices. See, e.g., Children’s
Online Privacy Protection Act, 15 U.S.C. §§ 6501-06;
Electronic Communications Privacy Act, 18 U.S.C.
§ 2511; Video Privacy Protection Act, 18 U.S.C.
§ 2710; Radio Act, 47 U.S.C. § 605.
Lawmakers also may prohibit certain
discrimination on social media platforms.
For
example, many public-accommodations laws apply to
online services. See, e.g., David Brody & Sean
Bickford, Discriminatory Denial of Service: Applying
State Public Accommodations Laws to Online
Commerce, Lawyers’ Comm. for Civ. Rts. Under Law,
2
(Jan.
2020)
(cataloging
which
state
antidiscrimination laws apply to online platforms).37
Federal and state courts are increasingly applying
traditional civil-rights laws to online discriminatory
conduct. See, e.g., Henderson v. Source for Pub. Data,
53 F.4th 110, 118-19 (4th Cir. 2022) (Fair Credit
Reporting Act); Fair Hous. Council of San Fernando
Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162
(9th Cir. 2008) (Fair Housing Act); Liapes v. Facebook,
Inc., 313 Cal. Rptr. 3d 330, 335, 340-41 (Cal. Ct. App.
https://lawyerscommittee.org/wp-content/uploads/201
9/12/Online-Public-Accommodations-Report.pdf.
Since the
publication of this report, Nevada and the District of Columbia
have amended their statutes to apply to online services. See D.C.
Code § 2-1401.02 (2023); Nev. Rev. Stat. § 651.050 (2023).
37
29
2023), pet. for review filed (Oct. 31, 2023) (California
Unruh Civil Rights Act).
Traditional civil-rights laws are increasingly
important in holding accountable online platforms as
they
incorporate
automated
decision-making
processes into their businesses. These processes often
rely on data such as one’s neighborhood, job and credit
history, education, personal associations, wealth, and
health, which are inextricably intertwined with
generations of discrimination and segregation in
housing, employment, education, banking, insurance,
and criminal justice. See Rashida Richardson, Racial
Segregation and the Data-Driven Society: How Our
Failure to Reckon with Root Causes Perpetuates
Separate and Unequal Realities, 36(3) Berkeley Tech.
L.J. 101, 120 (2021); see generally Ruha Benjamin,
Race After Technology (2019); Safiya Noble,
Algorithms of Oppression (2018).
Automated
decision-making systems built with societal data
therefore often reproduce discrimination—at scale.
See White House Off. of Sci. & Tech. Pol’y, Blueprint
for an AI Bill of Rights, 24 (Oct. 2022) (“Data that fails
to account for existing systemic biases in American
society can result in a range of consequences.”).38
Applying existing laws against discrimination
to social media platforms is also consistent with this
Court’s recognition that the government has a
compelling interest in “eradicating discrimination”
against its citizens, particularly discrimination
https://www.whitehouse.gov/wp-content/uploads/
2022/10/Blueprint-for-an-AI-Bill-of-Rights.pdf.
38
30
against Black people and members of other
historically marginalized communities. 303 Creative
LLC, 600 U.S. at 590. As the Court noted in R.A.V.,
“[w]here the government does not target conduct on
the basis of its expressive content, acts are not
shielded from regulation merely because they express
a discriminatory idea or philosophy.” R.A.V., 505
U.S. at 390; accord, e.g., Roberts v. U.S. Jaycees, 468
U.S. 609, 623 (1984) (“The right to associate for
expressive purposes is not, however, absolute.
Infringements on that right may be justified by
regulations adopted to serve compelling state
interests, unrelated to the suppression of ideas, that
cannot be achieved through means significantly less
restrictive of associational freedoms.”); see also, e.g.,
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 733
(2014) (there must be “equal opportunity to
participate in the workforce without regard to race”);
Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte,
481 U.S. 537, 549 (1987) (upholding publicaccommodation statute requiring equal treatment
based on sex); Bob Jones Univ. v. United States, 461
U.S. 574, 604 (1983) (upholding IRS policy requiring
racially nondiscriminatory policies at tax-exempt
private schools).
Likewise, social media platforms cannot
engage in fraud or unfair or deceptive trade practices,
even if speech is involved in doing so. See, e.g.,
Alvarez, 567 U.S. at 722-23 (plurality opinion)
(prohibiting fraudulent speech does not violate First
Amendment); 44 Liquormart, 517 U.S. at 501 (“When
a State regulates commercial messages to protect
consumers from misleading, deceptive, or aggressive
31
sales practices, or requires the disclosure of beneficial
consumer information, the purpose of its regulation is
consistent with the reasons for according
constitutional protection to commercial speech and
therefore justifies less than strict review.”); Cent.
Hudson Gas, 447 U.S. at 563 (“The government may
ban forms of communication more likely to deceive the
public than to inform it . . . .”). Unscrupulous trade
practices disproportionately harm communities of
color. See generally Fed. Trade Comm’n, Serving
Communities of Color: A Staff Report on the Federal
Trade Commission’s Efforts to Address Fraud and
Consumer Issues Affecting Communities of Color (Oct.
2021).39
The Court also has recognized compelling
interests in “protecting voters from confusion and
undue influence,” “preserving the integrity of [a
state’s] election process,” and “ensuring that an
individual’s right to vote is not undermined by fraud
in the election process.” Burson, 504 U.S. at 199
(plurality opinion) (cleaned up). Thus, a narrowly
crafted law targeting voter intimidation may survive
strict scrutiny if, for example, it required removing
false or misleading speech about the time, place, or
manner of voting from social media.
https://www.ftc.gov/system/files/documents/reports
/serving-communities-color-staff-report-federal-tradecommissions-efforts-address-fraud-consumer/ftc-communitiescolor-report_oct_2021-508-v2.pdf.
39
32
Unlike the Texas and Florida laws, laws
regulating conduct or with substantial or compelling
justifications—like those prohibiting discrimination
or protecting consumers—do not run afoul of the First
Amendment. The Court should issue a narrow
decision that preserves the ability of governments to
regulate online businesses just like other businesses.
CONCLUSION
This Court should hold narrowly that S.B. 7072
and H.B. No. 20 violate the First Amendment without
setting a precedent that will impair the ability to
safeguard civil rights.
December 7, 2023
Respectfully submitted,
CHRISTOPHER M. MASON DAMON HEWITT*
ALICIA JOHNSON-ISHMAN JON GREENBAUM
NIXON PEABODY LLP
DARIELY RODRIGUEZ
Tower 46
DAVID BRODY
55 West 46th Street
Counsel of Record
New York, NY 10036
MARC EPSTEIN
LAWYERS’ COMMITTEE FOR
SETH A. HORVATH
CIVIL RIGHTS UNDER LAW
MICHAEL J. TESTA
1500 K STREET, N.W.
NIXON PEABODY LLP
SUITE 900
70 West Madison Street Washington, DC 20016
Suite 5200
202-662-8320
Chicago, IL 60602
dbrody@lawyerscommittee.org
33
* Admitted in
Pennsylvania only;
practice limited to matters
before federal courts
Counsel for The Lawyers’ Committee for Civil Rights
Under Law as Amicus Curiae
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.