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, IN HER OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF FLORIDA, ET AL.,

Petitioners,

NETCHOICE, LLC; AND COMPUTER &

COMMUNICATIONS INDUSTRY ASSOCIATION,

Respondents,

NETCHOICE, LLC; AND COMPUTER &

COMMUNICATIONS INDUSTRY ASSOCIATION,

Petitioners,

KEN PAXTON, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF TEXAS

Respondent.

On Writs of Certiorari to the United States Court

of Appeals for the Fifth and Eleventh Circuits

BRIEF OF THE KNIGHT FIRST

AMENDMENT INSTITUTE AT COLUMBIA

UNIVERSITY AS AMICUS CURIAE IN

SUPPORT OF NEITHER PARTY

Scott Wilkens

Counsel of Record

Ramya Krishnan

Alex Abdo

Jameel Jaffer

Knight First Amendment Institute

at Columbia University

475 Riverside Drive, Suite 302

New York, NY 10115

(646) 745-8500

scott.wilkens@knightcolumbia.org

TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................... iii

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT .................................. 1

ARGUMENT ............................................................. 5

The Court should reject constructions

of the First Amendment that would

preempt legislation that serves First

Amendment values................................... 5

II.

The Texas and Florida laws’ mustcarry provisions are unconstitutional. .... 7

The First Amendment protects

the exercise of editorial

judgment. ....................................... 7

Some of what social media

platforms do reflects the

exercise of editorial judgment. ...... 9

Some laws that implicate

editorial judgment are

consistent with the First

Amendment. ................................ 12

The analogy of social media

companies to newspapers is

helpful only to a point. ................ 14

III.

The Florida and Texas laws’

must-carry provisions fail even

intermediate scrutiny. ................. 18

Florida’s individualized-explanation

provision is unconstitutional but

Texas’s corresponding provision is

constitutional under Zauderer............... 21

Compelled commercial

disclosures are governed by the

Zauderer framework.................... 22

Texas’ individualizedexplanation provision meets

Zauderer’s threshold

requirements................................ 25

Texas’s individualizedexplanation provision survives

Zauderer scrutiny, but Florida’s

does not. ....................................... 29

CONCLUSION ....................................................... 34

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis, 600 U.S.

570 (2023) .......................................................... 23

Am. Beverage Ass’n v. City & Cnty. of

San Francisco, 916 F.3d 749 (9th

Cir. 2019) ........................................................... 30

Am. Hosp. Ass’n v. Azar, 983 F.3d 528

(D.C. Cir. 2020) ................................................. 24

Am. Meat Inst. v. U.S. Dep’t of Agric.,

760 F.3d 18 (D.C. Cir. 2014) ....................... 24, 27

Ark. Educ. Television Comm’n v.

Forbes, 523 U.S. 666 (1998) ................................ 8

Ashcroft v. Am. C.L. Union, 535 U.S.

564 (2002) .......................................................... 15

Assoc. Press v. NLRB, 301 U.S. 103

(1937) ................................................................. 11

Assoc. Press v. United States, 326 U.S.

1 (1945) ................................................................ 9

Brown v. Hartlage, 456 U.S. 45 (1982) .................... 9

Buckley v. Valeo, 424 U.S. 1 (1976) ......................... 9

iii

Cal. Chamber of Com. v. Council for

Educ. & Rsch. on Toxics, 29 F.4th

468 (9th Cir. 2022) ............................................ 28

Cal. Democratic Party v. Jones, 530

U.S. 567 (2000) .................................................. 20

Columbia Broad. Sys., Inc. v.

Democratic Nat’l Comm., 412 U.S.

94, 124 (1973) ...................................................... 8

CTIA—The Wireless Ass’n v. City of

Berkeley, Cal., 928 F.3d 832 (9th

Cir. 2019) ............................................... 24, 27, 28

Darnaa, LLC v. Google, LLC, 756 F.

App’x 674 (9th Cir. 2018) .................................. 29

Hurley v. Irish-Am. Gay, Lesbian and

Bisexual Grp. of Boston, 515 U.S.

557 (1995) ............................................ 8, 9, 13, 16

Iancu v. Brunetti, 139 S. Ct. 2294

(2019) ................................................................. 12

Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241 (1974) ......................... 7, 8, 9, 10, 11

Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d

518 (D.C. Cir. 2015) .......................................... 24

Nat’l Elec. Mfrs Ass’n v. Sorrell, 272

F.3d 104 (2d Cir. 2001) ..................................... 25

Nat’l Inst. of Family and Life

Advoc. v. Becerra, 138 S. Ct.

2361 (2018) .................................. 3, 22, 23, 28, 30

Pac. Gas & Elec. Co. v. Pub. Util.

Comm’n of California, 475 U.S.

1 (1986) ........................................ 8, 12, 13, 23, 28

R.J. Reynolds Tobacco Co. v. FDA, 696

F.3d 1205 (D.C. Cir. 2012) ................................ 24

Se. Promotions, Ltd. v. Conrad, 420

U.S. 546 (1975) .................................................. 15

Turner Broad. Sys., Inc. v. FCC, 512

U.S. 622 (1994) .................................. 8, 13, 14, 20

Turner Broad. Sys., Inc. v. FCC, 520

U.S. 180 (1997) ...................................... 12, 14, 20

Va. State Bd. of Pharmacy v. Va.

Citizens Consumer Council, Inc.,

425 U.S. 748 (1976) ........................................... 24

Zauderer v. Off. of Disciplinary Couns.

of the Sup. Ct. of Ohio, 471 U.S.

626 (1985) .................. 3, 21, 22, 23, 24, 27, 29, 30

Statutes

47 U.S.C. § 230 ....................................................... 16

Fla. Stat. § 106.072 ................................................ 18

Fla. Stat. § 501.2041 ........................ 4, 18, 19, 31, 32

Tex. Bus. & Com. Code Ann.

§ 120.103 ................................................ 26, 31, 32

Tex. Civ. Prac. & Rem. Code

§ 143A.001 ......................................................... 19

Tex. Civ. Prac. & Rem. Code

§ 143A.002 ......................................................... 19

Other Authorities

Article 17(1) of Regulation (EU)

2022/2065 of the European

Parliament and of the Council of 19

October 2022 on a Single Market

for Digital Services and amending

Directive 2000/31/EC (Digital

Services Act),

https://perma.cc/2N37-3L4S ............................. 33

Eugene Volokh, Treating Social Media

Like Common Carriers?, 1 J. Free

Speech L. 377 (2021) ................................... 11, 17

European Commission, DSA

Transparency Database,

Explanation of the information

held in the DSA Transparency

Database, Submission of clear and

specific statements,

https://perma.cc/4VFK-YZQ3 ........................... 34

Genevieve Lakier, The Problem Isn’t

the Use of Analogies but the

Analogies Courts Use, Knight First

Amend. Inst. at Columbia Univ.

(Feb. 26, 2018),

https://perma.cc/WDT7-EY4J ........................... 17

Heather Whitney, Search Engines,

Social Media, and the Editorial

Analogy, Knight First Amend. Inst.

at Columbia Univ. (Feb. 27, 2018),

https://perma.cc/C4DY-4W7G .......................... 15

Jack M. Balkin, How to Regulate (and

Not Regulate) Social Media, Knight

First Amend. Inst. at Columbia

Univ. (March 25, 2020),

https://perma.cc/7RVH-BV6F ........................... 10

Kate Klonick, The New Governors: The

People, Rules, and Processes

Governing Online Speech, 131

Harv. L. Rev. 1598 (2017) ................................. 15

Oren Bracha, The Folklore of

Informationalism: The Case of

Search Engine Speech, 82 Fordham

L. Rev. 1629 (2014) ........................................... 17

Rachel Kraus, Facebook labeled 180

million posts as ‘false’ since March.

Election misinformation spread

anyway, Nov. 19, 2020,

https://perma.cc/8HBA-CUWZ ......................... 31

vii

Ramya Krishnan, The Pitfalls of

Platform Analogies in

Reconsidering the Shape of the

First Amendment, Knight First

Amend. Inst. at Columbia Univ.

(May 19, 2021),

https://perma.cc/QHD8-7JLS ........................... 17

Robinson Meyer, How Many Stories

Do Newspapers Publish Per Day?

The Atlantic (May 26, 2016),

https://perma.cc/Q6TQ-GEHE .......................... 16

Who We Are: Company Info, Meta,

https://perma.cc/2WFD-Z9KV .......................... 16

X Terms of Service, X,

https://perma.cc/2S2L-VPA5 ............................ 29

Yoel Roth & Nick Pickles, Updating

our approach to misleading

information, Twitter Blog (May 11,

2020), https://perma.cc/9JJ7-JDBM ................. 10

viii

INTEREST OF AMICUS CURIAE 1

The Knight First Amendment Institute at

Columbia University (“Knight Institute” or

“Institute”) is a non-partisan, not-for-profit

organization that works to defend the freedoms of

speech and the press in the digital age through

strategic litigation, research, and public education.

The Institute’s aim is to promote a system of free

expression that is open and inclusive, that broadens

and elevates public discourse, and that fosters

creativity, accountability, and effective selfgovernment.

Amicus has a particular interest in these cases

because of the vital role social media platforms play

as forums for public discourse. These cases may have

far-reaching implications for the free speech rights

of the platforms and their users, and for the ability

of government to enact legislation essential to

ensuring that the digital public sphere serves

democracy.

SUMMARY OF ARGUMENT

Social media platforms have enormous power to

shape public discourse. One of the ways they

exercise that power is by establishing and enforcing

acceptable-use policies, i.e. by moderating user

content. These cases ask the Court to consider

1 No counsel for any party authored this brief in whole or in

part, and no person or entity other than amicus or its counsel

made a monetary contribution to fund the preparation or

submission of the brief. Sup. Ct. R. 37.6.

whether and when the government can restrict the

platforms’

content-moderation

activities

consistently with the First Amendment. They also

require the Court to consider how the First

Amendment applies to regulations that require

platforms to disclose information about those

activities.

Unfortunately, none of the parties in this case

offers a compelling theory of how the First

Amendment should apply to the regulation of social

media. Florida and Texas (the “States”) contend that

the platforms’ content-moderation decisions do not

implicate the First Amendment at all. If accepted,

this theory would give governments sweeping

authority over the digital public sphere and impede

social media companies from building distinctive

online communities and from addressing real harms

to users. The platforms take a diametrically opposed

position, arguing that any regulation implicating

their content-moderation decisions must be

subjected to the most stringent First Amendment

scrutiny,

perhaps

even

regarded

unconstitutional per se. This theory would make it

nearly impossible for governments to enact even

carefully drawn laws that serve First Amendment

values.

The Court should reject both of these theories. As

this brief explains, social media platforms’ contentmoderation decisions are protected by the First

Amendment because they reflect the exercise of

editorial judgment. On this important, threshold

question, the platforms are correct. That contentmoderation is protected by the First Amendment,

however, does not mean that any regulation that

touches on it is unconstitutional. Here, as in other

contexts, the relevant level of scrutiny will turn on

the nature of the regulation, with content-neutral

regulations being subject to intermediate scrutiny

and content-based ones being subject to strict

scrutiny. And here, as in other contexts, whether a

regulation survives the relevant level of scrutiny will

turn on, among other things, the strength of the

government’s

regulatory

interest

and

the

significance of the burden the regulation imposes on

First Amendment activity. In an effort to elide these

questions, the platforms and some of their amici

suggest that precedents involving the regulation of

newspapers decide this case. But social media

platforms and newspapers are different in

important respects, and these differences should

matter to the First Amendment analysis, as

explained below.

The Court should also reject the parties’ most

extreme arguments about the disclosure provisions.

As the Court has said in other contexts, regulations

that require businesses to disclose purely factual

and uncontroversial information about their

services are constitutional unless they are

“unjustified” or “unduly burden[] protected speech.”

Nat’l Inst. of Family and Life Advoc. v. Becerra

(NIFLA), 138 S. Ct. 2361, 2377 (2018); see also

Zauderer v. Off. of Disciplinary Couns. of the Sup.

Ct. of Ohio, 471 U.S. 626, 651 (1985). This is because

these kinds of provisions promote the free flow of

accurate information to the public about goods and

services, furthering the interest that was the

justification for extending First Amendment

protection to commercial speech in the first place.

Zauderer’s framework is appropriate in this context

because it accounts for both of the First Amendment

interests in play—the platforms’ interest in the

independent exercise of editorial judgment, and

users’ interest in understanding the platforms that

have become the infrastructure for public discourse.

Zauderer’s undue-burden test is also flexible enough

to account for the more substantial free-speech

interests implicated by disclosure provisions that

touch upon expressive activity.

Applying this framework, the Florida and Texas

must–carry provisions are unconstitutional because

they override the platforms’ editorial judgment and

fail even intermediate scrutiny.2 Florida’s

individualized-explanation

provision

also

unconstitutional because it fails even under

Zauderer, but Texas’s corresponding provision,

properly construed, survives Zauderer scrutiny

because it requires the disclosure only of factual and

uncontroversial information and does not unduly

burden the platforms’ exercise of editorial judgment.

2 This brief does not address the other content-moderation

provisions of the Florida law, including the “consistency,” “30day restriction,” and “user opt-out” provisions. Fla. Stat. §

501.2041(2)(b), (c), (f), (g).

ARGUMENT

The Court should reject constructions

of the First Amendment that would

preempt legislation that serves First

Amendment values.

The parties in this case offer radically different

theories of how the First Amendment applies to the

regulation of social media. Florida and Texas

contend that laws restricting the platforms from

curating the speech on their sites do not implicate

the First Amendment at all because they “regulate[]

conduct, not speech.”3 The platforms, by contrast,

argue that any law implicating editorial judgment

must be subject to strict scrutiny, or perhaps even

regarded as unconstitutional per se.4

Thus, the parties offer two theories of the First

Amendment—one that would render the First

Amendment largely irrelevant to the regulation of

social media, and another that would make the First

Amendment a near-categorical bar to such

regulation. The Court should reject both of these

theories. The platforms are correct that their

content-moderation policies and decisions are

protected by the First Amendment because they

reflect the exercise of editorial judgment. That a law

3 Moody Pet. at 18–19; Paxton Pet. Opp. at 18.

4 The platforms argue, for example, that the Texas law’s

disclosure provisions are “per se invalid as intrusions targeting

editorial functions.” Plaintiffs’ Motion for Preliminary

Injunction at 24, NetChoice, LLC v. Paxton, No. 1:21-cv-00840

(W.D. Tex. Nov. 1, 2021).

implicates editorial judgment, however, does not

mean the law is unconstitutional. As in other

contexts, content-based laws are constitutional if

they survive strict scrutiny, and content-neutral

laws are constitutional if they survive intermediate

scrutiny. Moreover, laws requiring the disclosure of

purely factual and uncontroversial information

about the terms on which a service is offered are

constitutional if they are not unjustified and do not

impose an undue burden on speech.

The Court should accordingly reject the parties’

arguments about the application of the First

Amendment in this context. It should reject them

not only because they are inconsistent with

precedent, but also because neither of them would

serve our society well. The States’ version of the

First Amendment would give the government

sweeping authority over the digital public sphere

and impede social media companies from addressing

real harms online. The platforms’ theory, by

contrast, would make it extremely difficult, if not

impossible, for governments to enact even carefully

drawn laws intended to protect the free speech

rights of the platforms’ users and to ensure that our

system of free expression serves democracy—for

example, laws that would require platforms to be

accountable to the users with whom they have

entered into contractual agreements, protect the

privacy of those users, and promote competition and

interoperability.

II.

The Texas and Florida laws’ must-carry

provisions are unconstitutional.

The First Amendment protects the

exercise of editorial judgment.

In an important series of cases, this Court has

recognized that the First Amendment protects the

exercise of “editorial judgment.” In Miami Herald

Publishing Company v. Tornillo, 418 U.S. 241

(1974), the Court invalidated a statute requiring

newspapers that criticized political candidates to

afford those candidates an opportunity to reply, in

the newspapers’ own pages, free of charge and with

equal prominence and space. 418 U.S. at 244 & n.2.

The Court concluded that the statute “fail[ed] to

clear the barriers of the First Amendment because

[it] intru[ded] into the function of editors” by

compelling them “to publish that which ‘reason’ tells

them should not be published.” Id. at 256, 258.

Observing that “[a] newspaper is more than a

passive receptacle or conduit for news, comment,

and advertising,” the Court held that “[t]he choice of

material to go into a newspaper, and the decisions

made as to limitations on the size and content of the

paper, and treatment of public issues and public

officials—whether fair or unfair—constitute the

exercise of editorial control and judgment.” Id. at

258. In his concurrence, Justice White underscored

that “the very nerve center of a newspaper,” is “the

decision as to what copy will or will not be included,”

and that the First Amendment prohibits the

government from dictating “the contents of [a

newspaper’s] news columns or the slant of its

editorials.” Id. at 259–61 (White, J., concurring); see

also Columbia Broad. Sys., Inc. v. Democratic Nat’l

Comm., 412 U.S. 94, 124 (1973) (“editing is what

editors are for; and editing is selection and choice of

material”).

Since Tornillo, the Court has held that the First

Amendment protects the exercise of editorial

judgment in other contexts, and by other kinds of

actors. See, e.g., Pac. Gas & Elec. Co. v. Pub. Util.

Comm’n of California, 475 U.S. 1, 14–16 (1986)

(plurality op.) (requiring utility to include in its

newsletter views opposed to its own interfered with

utility’s editorial judgment by forcing it to

disassociate itself from those views);5 Turner Broad.

Sys., Inc. v. FCC, 512 U.S. 622, 636, 643–44 (1994)

(cable must-carry provisions interfered with

operators’ “editorial discretion over which stations

or programs to include in [their] repertoire,” through

which operators “seek[] to communicate messages

on a wide variety of topics”); Hurley v. Irish-Am.

Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S.

557, 572–75 (1995) (parade organizer exercised

editorial judgment in excluding a gay rights group,

because the group’s participation would alter the

parade’s expressive content and thus the organizer’s

own message); Ark. Educ. Television Comm’n v.

Forbes, 523 U.S. 666, 673, 683 (1998) (rejecting First

Amendment challenge to broadcaster’s exclusion of

political candidate from debate because excluding

candidate fell within broadcaster’s “editorial

5 All subsequent citations to Pacific Gas are to the plurality

opinion.

discretion in the selection and presentation of [its]

programming”).

The protection that the Court conferred on

editorial judgment in these cases is vital for more

than one reason. Protecting editorial discretion in

these contexts was a way of recognizing and

affirming the “principle of autonomy to control one’s

own speech.” Hurley, 515 U.S. at 574. It was also,

more fundamentally, a way of protecting public

discourse from government intervention that might

have distorted democratic self-governance. Tornillo,

418 U.S. at 257 (emphasizing the danger that

government intervention into editorial decisions will

distort, “dampen[],” or “limit[] the variety of” public

debate); Brown v. Hartlage, 456 U.S. 45, 60 (1982)

(observing that the First Amendment “embodies our

trust in the free exchange of ideas as the means by

which the people are to choose between good ideas

and bad”); Assoc. Press v. United States, 326 U.S. 1,

20 (1945) (First Amendment intended to ensure “the

widest possible dissemination of information from

diverse and antagonistic sources”); see also Buckley

v. Valeo, 424 U.S. 1, 49 (1976) (per curiam).

Some of what social media

platforms do reflects the exercise

of editorial judgment.

Social media companies exercise editorial

discretion in at least two contexts: when they specify

and enforce “community standards” that restrict

what categories of content users can post, and when

they attach warning labels to user content.

When social media companies specify and enforce

community standards, they make decisions roughly

analogous to the ones this Court held to be protected

in Tornillo, Pacific Gas, Turner, and Hurley. They

decide what categories of content will appear on

their platforms and what categories will not. Their

decisions reflect judgments about the relative value

of those categories of content. And collectively, these

decisions determine the expressive character of the

product they provide to their users.6 In Tornillo, the

Court observed that “[t]he choice of material to go

into a newspaper” is at the core of editorial

judgment. 418 U.S. at 258. Here, too, decisions about

what content to include or exclude are properly

characterized as editorial in nature.

The platforms also exercise editorial judgment

when they attach labels to third-party content.

Platforms deploy these labels for a variety of

reasons, including to alert users to content that may

be disturbing and to flag content that platforms

believe to be misleading or false.7 Whereas most

content posted on social media platforms is

generated by users, labels are distinctive in that

6 See Jack M. Balkin, How to Regulate (and Not Regulate)

Social Media, Knight First Amend. Inst. at Columbia Univ.

(March 25, 2020), https://perma.cc/7RVH-BV6F (observing

that social media platforms, like twentieth-century mass

media, “set boundaries on permissible content” and thereby

“curate public discourse”).

7 Yoel Roth & Nick Pickles, Updating our approach to

misleading information, Twitter Blog (May 11, 2020),

https://perma.cc/9JJ7-JDBM.

they are generated by the platforms themselves.8

They are roughly analogous to newspaper editorials,

in which newspapers speak directly on matters of

public concern. As such, they fall comfortably within

the scope of “editorial judgment.” As the Court made

clear in Tornillo, editorial judgment encompasses

the “treatment of public issues,” which the

attachment of warning labels generally is. 418 U.S.

at 258. And attaching labels to content also reflects

decisions about the value of the speech to which the

labels are attached, just as specifying community

standards does. Even if the attachment of a warning

label did not entail the exercise of editorial

judgment, it would still constitute speech protected

by the First Amendment, for the same reasons that

an editorial constitutes speech.

Of course, that social media companies exercise

editorial judgment in these two contexts does not

mean that all of their business practices fall within

the scope of the First Amendment. The relevant

inquiry is not whether a regulated entity exercises

editorial judgment in some context, but whether the

entity exercises editorial judgment in the specific

context addressed by the regulation. See e.g., Assoc.

Press v. NLRB, 301 U.S. 103 (1937) (upholding

NLRB order directing Associated Press to reinstate

editor fired for his union activity, because the order

did not in any way limit the Associated Press’s

freedom to publish the news as it saw fit). The

important point for present purposes is that some of

8 E.g., Eugene Volokh, Treating Social Media Like Common

Carriers?, 1 J. Free Speech L. 377, 433 (2021) (acknowledging

that “posting fact-checks or warnings” is platform speech).

the platforms’ activities reflect the exercise of

editorial judgment—and that these activities are

restricted by the challenged regulations, as

discussed further below.

Some laws that implicate editorial

judgment are consistent with the

First Amendment.

Even regulations that implicate editorial

judgment can be constitutional in some contexts.

Content-based regulations will be constitutional if

they satisfy strict scrutiny. Iancu v. Brunetti, 139 S.

Ct. 2294, 2304 (2019) (“even when we consider a

regulation . . . that is subject to ‘strict scrutiny,’ we

sometimes find the regulation to be constitutional

after weighing the competing interests involved.”).

And content-neutral laws are constitutional if they

satisfy intermediate scrutiny. Content-neutral laws

are reviewed less stringently because they “do not

pose the same inherent dangers to free expression,

and thus are subject to a less rigorous analysis,

which affords the Government latitude in designing

a regulatory solution.” Turner Broad. Sys., Inc. v.

FCC (Turner II), 520 U.S. 180, 213 (1997) (internal

quotation marks and citation omitted).

Tornillo, Pacific Gas, and Hurley show that

content-based laws that interfere with editorial

judgment are subject to strict scrutiny. The right-ofreply statute in Tornillo was content-based because

it “was triggered by a particular category of

newspaper speech,” and awarded access “only to

those who disagreed with the newspaper’s views.”

Pacific Gas, 475 U.S. at 13. Although the forced12

access rule in Pacific Gas was not triggered by any

speech of the utility, the Court found that it was

nonetheless content-based because it provided

access only to a third party with opposing views. Id.

at 12–14. The Court in Hurley did not expressly

state that it was applying strict scrutiny, but it

suggested as much by emphasizing that the parade

organizer, like the newspaper in Tornillo and the

utility in Pacific Gas, was forced to “disseminat[e] a

view contrary to [its] own,” which “compromised” its

“right to autonomy over [its] message.” 515 U.S. at

576.

In Turner, by contrast, the Court applied only

intermediate scrutiny because it concluded that the

challenged provisions were content-neutral. In that

case, the Court considered provisions that required

cable operators to carry local broadcast stations. The

Court concluded that the provisions burdened the

cable operators’ exercise of editorial judgment but

upheld them anyway. It did so after concluding that

the “overriding objective . . . was not to favor

programming of a particular subject matter,

viewpoint, or format, but rather to preserve access

to free television programming for the 40 percent of

Americans without cable.” Turner I, 512 U.S. at 646.

The Court expressly rejected the cable operators’

argument that Tornillo and Pacific Gas required

strict scrutiny merely because the must-carry

provisions compelled the “operators to transmit

speech not of their choosing.” Id. at 653. The Court

explained that the must-carry provisions were

content-neutral, unlike the regulations at issue in

Tornillo and Pacific Gas, because they were not

triggered “by any particular message spoken by

cable operators,” and they were not an attempt to

“counterbalance the messages” of the regulated

entity. Id. at 655. The Court also noted that cable

operators would not need to alter their own

messages to disavow the content of broadcasts,

because cable operators’ subscribers would not

associate those companies with the content of

broadcast channels in the first place. Id.

Having concluded that the must-carry provisions

were

content-neutral,

the

Court

applied

intermediate scrutiny and upheld the provisions,

because they were “designed to address a real

harm,” actually alleviated this harm, and were

narrowly tailored to the government’s important

regulatory interest. Turner II, 520 U.S. 180, 195,

215–16.

The analogy of social media

companies to newspapers is

helpful only to a point.

Social media platforms are like traditional

newspapers in that some of their activities involve

the exercise of editorial judgment. But social media

platforms are different from newspapers in

important ways. In any particular context, those

differences might matter to whether a particular

activity entails the exercise of editorial judgment,

how significantly a regulation burdens that

judgment, and the strength of the government’s

interest in imposing the burden.9 As the Court has

emphasized, “each medium of expression . . . must

be assessed for First Amendment purposes by

standards suited to it, for each may present its own

problems.” Se. Promotions, Ltd. v. Conrad, 420 U.S.

546, 557 (1975); Ashcroft v. Am. C.L. Union, 535 U.S.

564, 595 (2002) (“The economics and the technology

of each medium affect both the burden of a speech

restriction and the Government’s interest in

maintaining it.”).

Social media platforms differ from traditional

newspapers in multiple ways. For example, whereas

newspapers comprise mainly of content they

themselves create or specifically solicit, most

content posted on social media platforms is

generated by the platforms’ users.10 Newspapers are

highly selective in what they publish; they exercise

close curatorial control over their pages. Social

media companies generally have community

standards that place broad limits on what content

can be published on their platforms, but within

these limits they publish virtually everything that

users submit to them. All of this means that

newspapers are directly and “intimately connected”

9 See generally Heather Whitney, Search Engines, Social

Media, and the Editorial Analogy, Knight First Amend. Inst.

at Columbia Univ. (Feb. 27, 2018), https://perma.cc/C4DY4W7G.

10 Kate Klonick, The New Governors: The People, Rules, and

Processes Governing Online Speech, 131 Harv. L. Rev. 1598,

1660 (2017).

with the content they publish in a way that social

media platforms are not. Hurley, 515 U.S. at 576.

There is also a vast disparity in scale between

newspapers and social media platforms. The New

York Times online edition “publishes roughly 150

articles a day.”11 Over the same period, Facebook

users share more than 1 billion stories and 100

billion messages.12 This disparity exists because

platforms and newspapers have different business

models and because they operate under different

legal regimes (or, perhaps more accurately, because

they benefit to different extents from the same legal

regime). See 47 U.S.C. § 230 (immunizing online

services from civil liability for content posted by

third parties). Because of their scale and the role

they play in facilitating the speech of their users, the

major platforms are gatekeepers to public discourse

in a way that even the most influential newspapers

are not.

Newspapers are also coherent speech products in

a way that social media platforms are not. By

affirmatively selecting the subjects and viewpoints

that will make it into the paper, newspapers

communicate their own message to readers by

“combining multifarious voices.” Hurley, 515 U.S. at

Robinson Meyer, How Many Stories Do Newspapers

Publish Per Day? The Atlantic (May 26, 2016),

https://perma.cc/Q6TQ-GEHE.

Who

Are:

https://perma.cc/2WFD-Z9KV.

Company

Info,

Meta,

569.13 Because social media platforms are focused on

facilitating users’ speech, they are not curated in the

same granular way, and they are simply too

sprawling and diverse to be understood as coherent

speech products. Again, social media companies do

set community standards that delineate the outer

boundaries of permissible speech on their platforms,

and they do enforce these community standards to

one extent or another. But specifying and enforcing

community standards is not the same thing as

selecting and editing individual articles. This is why

newspapers’ readers tend to attribute newspapers’

content to the newspapers’ publishers, whereas

platforms’ users do not generally attribute the

content on the platforms to the platforms’ owners.14

These differences should be considered in any

First Amendment analysis. Some regulations that

would burden editorial judgment if imposed on

newspapers might not burden editorial judgment if

imposed on social media companies, or might not

burden it to the same extent. And the government

13 See also Oren Bracha, The Folklore of Informationalism:

The Case of Search Engine Speech, 82 Fordham L. Rev. 1629,

1651 (2014) (describing newspapers as producing “an

integrated expressive whole with which [the newspaper] is

associated”); Volokh, supra at 405 (describing newspapers as

providing a “coherent speech product”).

14 Bracha, supra at 1647–48; Genevieve Lakier, The

Problem Isn’t the Use of Analogies but the Analogies Courts

Use, Knight First Amend. Inst. at Columbia Univ. (Feb. 26,

2018), https://perma.cc/WDT7-EY4J; Ramya Krishnan, The

Pitfalls of Platform Analogies in Reconsidering the Shape of the

First Amendment, Knight First Amend. Inst. at Columbia

Univ. (May 19, 2021), https://perma.cc/QHD8-7JLS.

might have different reasons, and perhaps stronger

ones, for imposing certain kinds of regulatory

burdens on social media companies. Accordingly, the

analogy of social media companies to newspapers is

helpful only to a point. The similarities between

platforms and newspapers are important, but, in

any particular context the differences might be

important, too.

The Florida and Texas laws’ mustcarry provisions fail even

intermediate scrutiny.

The must-carry provisions are unconstitutional

because they override the platforms’ exercise of

editorial discretion and cannot survive even

intermediate scrutiny. These provisions force

platforms to publish a vast array of speech they do

not want to publish, and that they view as

inconsistent with the expressive communities they

are trying to foster. The provisions also preclude the

platforms from attaching labels to users’ posts—that

is, from editorializing about them. Neither Florida

nor Texas has established that these provisions are

narrowly tailored to any important interest.

The

Florida

law

prohibits

“willfully

deplatform[ing] a candidate” for public office, Fla.

Stat. § 106.072(2), or “us[ing] post-prioritization or

shadow banning algorithms for content and material

posted by or about” a candidate. Id. § 501.2041(2)(h).

It also prohibits “censor[ing], deplatform[ing], or

shadow ban[ning] a journalistic enterprise based on

the content of its publication or broadcast.” Id.

§ 501.2041(2)(j). The law expressly bars platforms

from attaching labels to user content. Id. § 501.2041

(1)(b).

The Texas law’s must-carry provision has a

significantly broader sweep, prohibiting platforms

from “censor[ing] a user, a user’s expression, or a

user’s ability to receive the expression of another

person 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.002. It does not

matter whether “the viewpoint is expressed on a

social media platform or through any other

medium.” Id. Because a great deal of user content

expresses a viewpoint, the Texas law’s must-carry

provision extends to a broad swath of content.

Moreover, like Florida’s law, the Texas law defines

“censor” broadly to include almost any action taken

by a platform to restrict the visibility of user content,

including attaching labels to user content.15 See Fla.

Stat. § 501.2041(1)(b); Tex. Civ. Prac. & Rem. Code

§ 143A.001.

15 The Florida law defines “[c]ensor” to “include[] any action

taken” to “delete, regulate, restrict, edit, alter, inhibit the

publication or republication of, suspend a right to post, remove,

or post an addendum to any content or material posted by a

user. Fla. Stat. § 501.2041(1)(b). The Texas law defines

“censor” to mean “block, ban, remove, deplatform, demonetize,

de-boost, restrict, deny equal access or visibility to, or

otherwise discriminate against expression.” Tex. Civ. Prac. &

Rem. Code § 143A.001. Although the Texas law’s definition of

“censor” does not expressly encompass attaching labels to user

content, it restricts this activity because labeling content

“den[ies] equal access or visibility to, or otherwise

discriminate[s] against expression.” Id.

The Court need not decide whether these mustcarry provisions are content neutral or content

based, because they fail even intermediate scrutiny.

The States, relying on Turner, assert that they have

a substantial interest in “‘assuring that the public

has access to a multiplicity of information sources.’”

Moody Pet. 25–26 (quoting Turner, 512 U.S. at 663);

Paxton Pet Opp. 26–28 (same). While this interest

is, as Turner says, of the “highest order,” it is not in

itself sufficient to justify the must-carry provisions

at issue here. 512 U.S. at 663. Turner makes clear

that “[w]hen the Government defends a regulation

on speech as a means to redress past harms or

prevent anticipated harms, it must do more than

simply posit the existence of the disease sought to be

cured.” Id. at 664 (citation and internal quotation

marks omitted); see also Cal. Democratic Party v.

Jones, 530 U.S. 567, 584 (2000). It must show

instead that the law would redress a specific harm.

The government did so in Turner by showing that

the must-carry provisions at issue there were

designed to protect the survival of over-the-air

broadcast television against the anticompetitive

practices of cable operators. Turner II, 520 U.S. at

196–213. The States make no comparable showing

here. Moody Pet. 25–26; Paxton Pet. Opp. 26–27.

Even if the must-carry provisions advanced a

substantial interest, the States have failed to show

that the provisions are narrowly tailored to that

interest. Most significantly, as explained above, the

States have failed to provide any justification at all

for restricting the ability of platforms to attach

labels to user speech. That restriction serves no

legitimate governmental interest at all; it serves

only to silence the platforms and impoverish public

discourse.

III.

Florida’s individualized-explanation

provision is unconstitutional but

Texas’s corresponding provision is

constitutional under Zauderer.

Whether the States’ individualized-explanation

provisions comply with the First Amendment should

be assessed under Zauderer. Zauderer provides the

appropriate framework here because it accounts

both for the value to public discourse of compelled

disclosures in the commercial context and also for

the potential burden that disclosure requirements

impose on the speech rights of those subject to them.

As Zauderer recognized, disclosures of “purely

factual and uncontroversial information” about the

terms under which goods and services are offered to

the public promote the free flow of information

relevant to democratic decision-making—the

primary justification for the First Amendment’s

protection of commercial speech. Zauderer, 471 U.S.

at 651. Importantly, however, Zauderer’s framework

accounts not just for the value of commercial

disclosures to the public but also for the potential

burden that disclosure requirements impose on the

speech of those subject to them. It is true that this

Court has not yet had an opportunity to consider

Zauderer’s application to disclosure requirements

that relate to a company’s expressive activities. But

Zauderer’s framework is appropriate even with

respect to such requirements because it

contemplates that the government’s burden of

justification will increase with the burden on

expression. The more substantial the burden a

disclosure requirement imposes on speech, the more

substantial the governmental interest must be for

the government to demonstrate that the burden is

not “undue” or “unjustified.”

Compelled commercial

disclosures are governed by the

Zauderer framework.

Under Zauderer, laws that compel the disclosure

of “purely factual and uncontroversial information

about the terms under which [a company’s] services

will be available” are evaluated less stringently than

laws that compel the disclosure of other forms of

speech. Id. ; see also NIFLA, 138 S. Ct. at 2372.

Specifically, commercial disclosure requirements

are constitutional under Zauderer unless they are

unjustified or impose an undue burden on speech.

Id. at 2372, 2378; see also Zauderer, 471 U.S. at 651.

Contrary to the platforms’ claim, Zauderer

extends to commercial disclosure mandates

generally, not just those that “correct[] misleading

advertising.” NetChoice No. 22-555 Br. at 16–17; see

also id. at 47–48; NetChoice No. 22-277 Br. at 39 n.6.

In Zauderer itself, the Court upheld a rule that

required lawyers who advertised their services on a

contingency-fee basis to disclose that clients could be

required to pay fees and costs. Zauderer, 471 U.S. at

650–53. The Court emphasized that the disclosure

requirement did “not attempt[] to prevent attorneys

from conveying information to the public,” but “only

required them to provide somewhat more

information than they might otherwise be inclined

to present”—“purely factual and uncontroversial

information about the terms under which [their]

services will be available.” Id. at 650–51. The

attorney’s “constitutionally protected interest in not

providing any particular factual information in his

advertising [was] minimal,” the Court reasoned,

because the First Amendment’s “protection [of]

commercial speech is justified principally by the

value to consumers of the information such speech

provides.” Id. (emphasis in original). The Court thus

concluded that while “unjustified or unduly

burdensome disclosure requirements might offend

the First Amendment by chilling protected

commercial speech, . . . an advertiser’s rights are

adequately protected as long as disclosure

requirements are reasonably related to the State’s

interest in preventing deception of consumers.” Id.

While Zauderer itself concerned a law intended

to address consumer deception in commercial

advertising, its reasoning applies more broadly. This

Court has long presumed that Zauderer extends

beyond this context. NIFLA, 138 S. Ct. at 2376

(“[W]e do not question the legality of health and

safety warnings long considered permissible, or

purely factual and uncontroversial disclosures about

commercial products.”); Pacific Gas, 475 U.S. at 16

n.12 (“The State, of course, has substantial leeway

in determining appropriate disclosure requirements

for business corporations.” (citing Zauderer)); see

also 303 Creative LLC v. Elenis, 600 U.S. 570, 596

(2023) (“[O]ur cases have held that that the

government may sometimes ‘requir[e] the

dissemination of purely factual and uncontroversial

information,’ particularly in the context of

‘commercial advertising.’” (quoting Hurley, 515 U.S.

at 573)). And every federal court of appeals to

consider the question has recognized as much. See,

e.g., CTIA—The Wireless Ass’n v. City of Berkeley,

Cal., 928 F.3d 832, 844 (9th Cir. 2019) (collecting

cases).16

This conclusion is supported by Zauderer itself,

which recognized that commercial disclosure

requirements serve the principal justification for

“[extending] First Amendment protection to

commercial speech” in the first instance—“the value

to consumers of the information such speech

provides.” 471 U.S. at 651; see also Va. State Bd. of

Pharmacy v. Va. Citizens Consumer Council, Inc.,

425 U.S. 748, 765 (1976) (holding that “the free flow

of commercial information is indispensable” to the

“formation of intelligent opinions” about our

economic system and, ultimately, to “public

decisionmaking in a democracy”). Plainly, this

rationale applies to any disclosure requirement that

16 The D.C. Circuit initially read Zauderer more narrowly,

but subsequently reversed course. See R.J. Reynolds Tobacco

Co. v. FDA, 696 F.3d 1205, 1213 (D.C. Cir. 2012) (Zauderer

limited to consumer deception context), overruled by Am. Meat

Inst. v. U.S. Dep’t of Agric. (AMI), 760 F.3d 18, 22 (D.C. Cir.

2014) (en banc) (“The language with which Zauderer justified

its approach . . . sweeps far more broadly than the interest in

remedying deception.”); Nat’l Ass’n of Mfrs. v. SEC (NAM), 800

F.3d 518, 522–23 (D.C. Cir. 2015) (Zauderer limited to

commercial advertising); Am. Hosp. Ass’n v. Azar (AHA), 983

F.3d 528, 541 (D.C. Cir. 2020) (explaining that, contrary to

NAM, “our court has not so limited” Zauderer).

facilitates the free flow of accurate commercial

information—not only to requirements that serve

the government’s interest in preventing consumer

deception in commercial advertising. See Nat’l Elec.

Mfrs Ass’n v. Sorrell, 272 F.3d 104, 114 (2d Cir.

2001) (“Protection of the robust and free flow of

accurate information is the principal First

Amendment justification for protecting commercial

speech, and requiring disclosure of truthful

information promotes that goal”).

Zauderer provides the proper framework for

evaluating

even

commercial

disclosure

requirements that relate to expressive activity.

Where it applies, Zauderer’s undue-burden test

requires courts to determine whether a disclosure

requirement imposes a burden that is “undue” or

“unjustified”—that is, it calls for a sliding-scale

consideration of free-speech benefits and burdens.

The greater the burden on speech, the more the

government must do to justify it. This framework

properly accounts both for the value to public

discourse of compelled disclosures in the commercial

context and for the potential burden that disclosure

requirements impose on speech.

Texas’ individualized-explanation

provision meets Zauderer’s

threshold requirements.

Texas’s individualized-explanation provision is

subject to Zauderer scrutiny because it satisfies

Zauderer’s threshold requirements. It requires the

disclosure of information that is (i) factual and (ii)

uncontroversial, and that (iii) relates to commercial

services provided to the public. The platforms do not

claim otherwise. NetChoice No. 22-555 Br. at 16–17,

47–48; NetChoice No. 22-277 Br. at 39–40. Amicus

takes no position on whether Florida’s provision

satisfies Zauderer’s threshold requirements,

because even if it did, it would fail Zauderer’s undueburden test, as explained further below.

Texas’s provision requires platforms to notify

users when their content is removed and to “explain

the reason the content was removed.” Tex. Bus. &

Com. Code Ann. § 120.103(a)(1).17 Amicus

understands this text to require platforms to

identify the provision within their terms of service

upon which they relied in removing user content.

And importantly, it is amicus’s understanding that

the platforms could comply with this requirement

through automated means, without individualized

human review.

Requiring a platform to notify users of the reason

why their content was removed is to require the

disclosure of “purely factual” information. All major

platforms enter into contractual relationships with

their users, in which the users agree to abide by

and the platforms reserve the right to remove

content that violates the terms. Requiring the

platforms to notify users of the basis for the removal

17 The Texas provision also requires platforms to “allow the

user to appeal.” Id. This requirement should not be evaluated

under Zauderer because it is not a compelled-disclosure

requirement. Amicus does not address the constitutionality of

this requirement in this brief.

of their content under these terms does not require

the platforms to express an opinion. Rather, it

requires the disclosure only of objective facts. See

Zauderer, 471 U.S. at 651; CTIA, 928 F.3d at 846–

48 (information is “purely factual” if it is “literally

true” and not “misleading”).18

NetChoice’s amici argue that the States’ laws

require the disclosure of subjective information, in

the form of the platforms’ “editorial standards.”

RCFP & ACLU Amicus Br. at 26. But this is wrong

with respect to at least Texas’s law. That law is best

understood to require the platforms to identify only

the contractual provision on the basis of which they

removed their customers’ content. This is not so

different from a law requiring an author’s publisher

to identify the contractual provision relied upon in

terminating the author’s book contract.

Texas’s

disclosure

requirement

also

“uncontroversial,” because there can be no “dispute

about [the] simple factual accuracy” of the

information that must be disclosed, and because it

does not require platforms to disseminate a “onesided . . . message” to users. AMI, 760 F.3d at 27; see

also id. at 35 (Kavanaugh J., concurring) (finding

the “uncontroversial” requirement easily met where

18 NetChoice contends that the disclosure provisions at

issue here are “akin to requiring a newspaper to explain every

decision not to publish any one of a million letters to the editor.”

NetChoice No. 22-555 Br. at 16–17. But newspapers do not

codify their editorial standards in contractual agreements with

those who submit letters to the editor. Nor do they ordinarily

make editorial decisions by mechanical application of anything

resembling terms of service.

the information was “factually straightforward,

evenhanded, and readily understood”); Cal.

Chamber of Com. v. Council for Educ. & Rsch. on

Toxics, 29 F.4th 468, 478 (9th Cir. 2022) (required

warning was “controversial because it elevate[d] one

side of a legitimately unresolved scientific debate

about whether eating foods and drinks containing

acrylamide increases the risk of cancer”).

It is true that some grounds for the removal of

content under a platform’s acceptable-use policy

“can be tied in some way to a controversial issue,”

CTIA, 928 F.3d at 845—for example, to hate speech,

harassment, or misinformation. This does not,

however,

render

the

required

disclosures

“controversial.” A factually true statement becomes

controversial only if it requires a speaker to take

sides in a debate and convey a message to which they

are morally, religiously, or ideologically opposed.

NIFLA, 138 S. Ct. at 2372; see also Pacific Gas, 475

U.S. at 15 n.12 (explaining that while states have

“substantial leeway” to impose “appropriate

information disclosure requirements” on businesses,

nothing in Zauderer permits it them to “require

corporations to carry the messages of third parties,

where the messages themselves are biased against

or are expressly contrary to the [business]’s views”).

In NIFLA, for example, California required clinics

whose purpose was to oppose abortion to provide

information about state-sponsored abortion services;

in other words, it forced them to wade into a “heated

political controversy” and convey a message

“fundamentally at odds with [their] mission.” CTIA,

928 F.3d at 845. Texas’s disclosure requirement does

no such thing.

Texas’ disclosure requirement also relates to the

terms on which platforms’ services are offered.

Indeed, it relates directly to the platforms’ “terms of

service”—that is, the contract users must agree to

before they can post content. See, e.g., Darnaa, LLC

v. Google, LLC, 756 F. App’x 674, 675 (9th Cir.

2018).19 In these contracts, the platforms agree to

provide users with access to a range of features and

applications, and, in return, users allow the

platforms to collect personal data, grant platforms a

worldwide license to publish their content, and agree

to comply with the platforms’ acceptable-use

policies, which are usually incorporated by

reference.20 Disclosures relating to the terms of

service are, by definition, “about the terms under

which [the] services [at issue] will be available.”

Zauderer, 471 U.S. at 651.

Texas’s individualizedexplanation provision survives

Zauderer scrutiny, but Florida’s

does not.

To survive Zauderer scrutiny, the individualizedexplanation provisions must not be “unjustified or

unduly burdensome.” Id. As noted above, this test

should apply on a sliding scale: The more the

For example, X Corp’s terms of service state: “These

governing your use of X.” X Terms of Service, X,

https://perma.cc/2S2L-VPA5.

20 See, e.g., id. (incorporating X Corp.’s rules and policies,

including its acceptable-use policy, set forth at

https://perma.cc/JMN2-EGN8).

burden, the more substantial the government must

do to justify it. See NIFLA, 138 S. Ct. at 2377

(disclosure should extend “no broader than

reasonably necessary”); Zauderer, 471 U.S. at 651

(holding that “an advertiser’s rights are adequately

protected as long as disclosure requirements are

reasonably related to the State’s interest”). Indeed,

this is precisely how some lower courts have applied

Zauderer’s undue burden standard. See, e.g., Am.

Beverage Ass’n v. City & Cnty. of San Francisco, 916

F.3d 749, 757 (9th Cir. 2019) (holding health

warning “unjustified and unduly burdensome” when

“balanced against its likely burden on protected

speech” (cleaned up)). It is also consistent with the

platforms’ interpretation of that standard.

NetChoice No. 22-555 Br. at 52 (arguing that Texas

“did not even try to demonstrate that its onerous

disclosure rules are not unduly burdensome when

balanced against any legitimate interests they

purport to serve”).

The States have offered little explanation for the

individualized-explanation provisions, but for

purposes of this brief amicus assumes that the

States can show that the requirements are not

“unjustified” because they serve the interest of

platform users in understanding the enforcement of

the platforms’ terms. The question of whether the

provisions impose an “undue burden,” however, is

more complicated. Amicus submits that, at least

based on the record developed so far, Texas’s

provision survives Zauderer scrutiny but that

Florida’s does not.

Several important differences between the

Florida and Texas provisions explain why Florida’s

provision unduly burdens speech but Texas’s

provision does not.

First, while the Texas provision requires

platforms to notify users only when their content is

“remove[d],” Tex. Bus. & Com. Code Ann.

§ 120.103(a)(1), the Florida provision requires

platforms to notify users when their content is

“censor[ed],” Fla. Stat. § 501.2041(2)(d)(1), which is

defined broadly to encompass “any action taken” to

“delete, regulate, restrict, edit, alter, inhibit the

publication or republication of, suspend a right to

post, remove, or post an addendum to any content or

material posted by a user.” Id. § 501.2041(1)(b). In

practical terms, the Florida provision requires

notifications in hundreds of millions or even billions

more instances per year than does the Texas

provision.21

Second, while the Texas provision appears to

require a limited notice “explain[ing] the reason the

content was removed,” Tex. Bus. & Com. Code Ann.

§ 120.103(a)(1), the Florida provision requires

platforms to provide “a thorough rationale

explaining the reason that the social media platform

censored the user,” as well as “a precise and

21 For example, from March to October 2020, Facebook alone

added “warning labels” to 180 million pieces of content

associated with the 2020 U.S. elections. Rachel Kraus,

Facebook labeled 180 million posts as ‘false’ since March.

Election misinformation spread anyway, Nov. 19, 2020,

https://perma.cc/8HBA-CUWZ.

thorough explanation of how the social media

platform became aware of the censored content or

material, including a thorough explanation of the

algorithms used, if any, to identify or flag the user's

content or material as objectionable.” Fla. Stat. §

501.2041(3). While Texas’s narrower notice

requirement, properly construed, could be

implemented through an automated response

system, it is not at all clear that the same is true of

Florida’s requirement.

Third, the Florida law, unlike the Texas law,

provides users with a private cause of action for

damages if platforms violate the individualizedexplanation provision. Fla. Stat. § 501.2041(6); Tex.

Bus. & Com. Code Ann. § 120.103(b). Under

Florida’s law, users are entitled to statutory

damages of up to $100,000 per violation, actual

damages, and “[i]f aggravating factors are present,

punitive damages.” Fla. Stat. § 501.2041(6).

Florida’s individualized-explanation provision is

likely to chill the platforms’ speech because it

requires platforms to send detailed notices to users

every time they take an action to make a user’s

content less visible, and because it imposes

potentially massive damages liability for violating

these requirements. Moody Pet. App. at 64a–65a (“a

platform could be slapped with millions, or even

billions, of dollars in statutory damages if a Florida

court were to determine that it didn’t provide

sufficiently ‘thorough’ explanations when removing

posts”). There is at least a significant risk that

platforms will feel compelled to alter their content

moderation activities in order to mitigate the risk of

liability. The Eleventh Circuit was right to observe

that “[i]t is substantially likely that this massive

potential liability is ‘unduly burdensome’ and would

‘chill[] protected speech’—platforms’ exercise of

editorial judgment—such that [the individualizedexplanation provision] violates platforms’ First

Amendment rights.” Id.

Texas’s individualized-explanation provision, by

contrast, appears to be far less onerous because,

again, it applies only to the removal of content, does

not require any particular level of detail, and is not

backed by potentially enormous damages. And,

again, given the automated way in which the major

platforms identify content that violates their terms,

it is amicus’s understanding that the platforms

could comply with Texas’s limited requirement in an

automated fashion. Indeed, the platforms are

already complying in an automated fashion with a

similar disclosure requirement imposed by the

European Union’s Digital Services Act (DSA), and it

is notable that they do not assert here that this

requirement has had a chilling effect.22 While the

Article 17(1) of the DSA requires platforms to provide

users across the EU with a “clear and specific statement of

reasons” for removing, disabling access to, demoting, or

otherwise restricting the visibility of their content.” Article 17(1)

of Regulation (EU) 2022/2065 of the European Parliament and

of the Council of 19 October 2022 on a Single Market for Digital

Services and amending Directive 2000/31/EC (Digital Services

Act), https://perma.cc/2N37-3L4S. The European Commission

has provided platforms with a standard list of specific but very

basic reasons to use in notices to users, such as “hate speech”

or “human trafficking.” European Commission, DSA

Transparency Database, Explanation of the information held in

platforms do assert that Texas’s law will compel

them to alter their content-moderation practices,

they do not attribute this to the individualizedexplanation requirement, which is the only

disclosure provision at issue in this case, but rather

to the combination of all of the disclosure

requirements set out on Section 2 of Texas’s law.

NetChoice No. 22-555 Br. at 46–47, 52–53.

CONCLUSION

For the foregoing reasons, amicus respectfully

urges this Court to hold that the must-carry

provisions of the Florida and Texas laws, and the

individualized-explanation provision of the Florida

law,

are

unconstitutional,

but

that

the

individualized-explanation provision of the Texas

law is constitutional under Zauderer.

the DSA Transparency Database, Submission of clear and

specific statements, ¶ 16, https://perma.cc/4VFK-YZQ3.

Respectfully submitted,