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,
v.
NETCHOICE, LLC; and Computer &
Communications Industry Association,
Respondents,
---------------------------------♦--------------------------------NETCHOICE, LLC; and Computer &
Communications Industry Association,
Petitioners,
v.
KEN PAXTON, in his official capacity
as Attorney General of Texas,
Respondent.
---------------------------------♦--------------------------------On Writs Of Certiorari To The
United States Courts Of Appeals
For The Fifth And Eleventh Circuits
---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE DISCORD INC.
IN SUPPORT OF RESPONDENTS IN NO. 22-277
AND PETITIONERS IN NO. 22-555
---------------------------------♦--------------------------------REBECCA TUSHNET
Counsel of Record
CHRISTOPHER JON SPRIGMAN
LEX LUMINA PLLC
745 Fifth Avenue, Suite 500
New York, NY 10151
rtushnet@lex-lumina.com
(646) 898-2055
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
INTERESTS OF THE AMICUS ..........................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
3
I.
Introduction to Discord .............................
3
II.
Discord’s Approach to Safety .....................
6
III.
Discord’s Provision of Services Creates
Significant Associational Rights ............... 12
IV.
Discord’s Structure Is Incompatible with
the Texas and Florida Laws ...................... 21
CONCLUSION..................................................... 28
ii
TABLE OF AUTHORITIES
Page
CASES
Boy Scouts of America v. Dale, 530 U.S. 640
(2000) ...................................................... 12-14, 17, 18
Democratic Party of United States v. Wisconsin
ex rel. La Follette, 450 U.S. 107 (1981)....................14
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557
(1995) ................................................................. 18-20
Mavrix Photographs, LLC v. LiveJournal, Inc.,
873 F.3d 1045 (9th Cir. 2017) ..................................27
New York State Club Assn., Inc. v. City of New
York, 487 U.S. 1 (1988) ............................................13
PruneYard Shopping Center v. Robins, 447 U.S.
74 (1980) ............................................................ 18, 19
Roberts v. United States Jaycees, 468 U.S. 609
(1984) ................................................................. 12, 13
Rumsfeld v. Forum for Academic & Institutional
Rights, Inc., 547 U.S. 47 (2006) ......................... 18, 19
Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U.S. 707 (1981)...........................14
STATUTES
Fla. Stat. §501.2041(1)(f ) ...........................................24
Fla. Stat. §501.2041(2)(d) ...........................................25
Fla. Stat. §501.2041(2)(j) ............................................24
iii
TABLE OF AUTHORITIES—Continued
Page
Tex. Sec. 120.103 .........................................................25
Tex. Sec. 143A.006 ......................................................25
OTHER AUTHORITIES
Brian Butler et al., Community Effort in Online
Groups: Who Does the Work and Why, in LEADERSHIP AT A DISTANCE: RESEARCH IN TECHNOLOGICALLY SUPPORTED GROUPS (ed. Suzanne
Weisband, 2007) ......................................................17
Discord, Suicide and Self-Harm Explainer,
https://discord.com/safety/suicide-selfharmpolicy-explainer .......................................................20
Tarleton Gillespie, Custodians of the Internet:
Platforms, Content Moderation, and the Hidden Decisions That Shape Social Media
(2018) .................................................. 9, 12, 14-17, 20
James Grimmelmann, The Platform Is the Message, 2 GEO. L. TECH. REV. 217 (2018) ....................15
Carmela Mento et al., Psychological Impact of
Pro-Anorexia and Pro-Eating Disorder Websites on Adolescent Females: A Systematic Review, 18(4) Int. J. Environ. Res. Public Health
2186 (2021) ..............................................................14
Casey Newton, Inside Discord’s reform movement for banned users, Platformer (Oct. 19,
2023), https://www.platformer.news/p/insidediscords-reform-movement-for ...............................23
iv
TABLE OF AUTHORITIES—Continued
Page
Petition: Small Claims Case, Cox v. Reddit, Inc.,
No. S22-87J1 (Just. Ct. Denton Cnty., Tex.
May 17, 2022) ..........................................................27
Alexis de Tocqueville, Democracy In America,
Volume 2 (Vintage Books 1840) ..............................11
Jonathan Vanian, IBM suspends advertising on
X after report says ads ran next to antisemitic
content, CNBC (Nov. 16, 2023), https://www.
cnbc.com/2023/11/16/ibm-stops-advertising-onx-after-report-says-ads-ran-by-nazi-content.
html ...........................................................................9
1
INTERESTS OF THE AMICUS1
Discord is a real time messaging service with over
150 million active monthly users who communicate
within a huge variety of interest-based communities,
or “servers.” Discord’s services are very different from
legacy social media like Facebook and X that the Florida and Texas legislatures likely had in mind when enacting these laws—Discord users are in control of their
experience, without newsfeeds or algorithms to drive
engagement, and they decide with whom they interact
and what communities and conversations they join.
But the laws themselves are broad enough to likely
sweep Discord into their purview.
Discord brings people together around shared experiences and seeks to create a safe, welcoming, and
inclusive space online. Discord emphasizes real time
interaction and connection among friends and encourages creativity and community around shared interests, and Discord’s approach to moderation is aligned
with this goal. Discord invests in both centralized moderation and tools for groups using the service to manage and organize themselves. Discord’s Community
Guidelines govern all user interaction and content on
Discord. In addition, many groups that gather on Discord maintain specific guidelines that apply only to
their own group, and that are designed to protect the
1
No party other than Amicus authored any part of this brief
or made a monetary contribution intended to fund the preparation or submission of the brief.
2
integrity of the particular discussion that the group intends to pursue.
The central purpose of Discord’s moderation policies, both those administered centrally by the company
and those administered by the communities for themselves—with Discord’s assistance, and often using
tools provided by Discord—is to protect the association
rights of Discord’s communities; i.e., the ability of those
communities to come together themselves around their
shared interests and to be able to exclude speech that
is hostile to a particular community’s purpose. While
the Texas and Florida laws undoubtedly threaten Discord’s First Amendment rights, they also undermine
the association rights of Discord communities. By requiring those communities to host speech that is inconsistent with and even hostile to a particular
community’s purpose these laws are harmful to Discord as a community of communities. But more importantly, invading the association rights of Discord
communities, as the Texas and Florida laws do, will
inevitably impair the ability of those communities to
organize, and to speak.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
Florida and Texas, in an attempt to limit large
platforms’ moderation activities, enacted laws that
not only harm those platforms’ own speech and associational interests, but the speech and association interests of communities of citizens online. Discord’s
3
individual communities often lack the resources, experience, and scale to moderate on their own. But if every
act of moderation attributable to Discord risks expensive litigation and potentially six-figure damages, Discord will be unable to assist these communities in
protecting themselves from harmful or irrelevant content. This will cause the communities themselves to
deteriorate, hampering the important associational
benefits they offer, much in the way that withdrawing
garbage collection from a community causes it to deteriorate. Where the “garbage” is hateful, dangerous, or
even merely unwanted content, that harm has First
Amendment weight. A proliferation of that content—
forced by the government—drives off communities,
and community members, who would otherwise be
strengthening their associations through interaction
and discussion within mutually agreed-upon boundaries.
---------------------------------♦---------------------------------
ARGUMENT
I.
Introduction to Discord
Discord is a real time messaging service for people
to talk and hang out online with their friends and communities. When Discord was first launched in 2015, its
initial user base drew primarily from friends leveraging Discord’s blend of voice and text chatting features
to play video games together. Discord has since grown
to include a broad and diverse range of people who use
the service to talk about a variety of topics, from sports
4
and travel to personal finance and mental health. Today, more than 150 million people log onto Discord
each month. While Discord’s services are very different
from traditional social media, they may still be captured by the breadth of the Texas and Florida laws at
issue before this Court, and it is possible (if not probable) that a plaintiff will assert as much, whether or not
that was the legislatures’ intent.2
As a messaging service, Discord differs from traditional social media in several important respects. First,
Discord’s users interact with their chosen communities
via “servers,” peer-to-peer spaces that enable conversation and sharing. Servers are made up of “channels”
where users communicate by text, voice, and video—a
more organized and powerful messaging experience.
Text channels allow users to interact via text-based
messages, as well as use images, videos, GIFs, emoji,
and other files. Voice channels allow users to communicate in real time by voice and/or video. Users are also
able to chat one-on-one via direct messages (“DMs”) or
in small groups (“GDMs”).
Second, Discord users can always decide with
whom they interact and what communities and conversations they join. There is no news feed, no endless
scrolling, no counting of likes, and no “going viral.” Discord is not a service designed to maximize engagement
by an algorithm picking and choosing the content
2
Discord runs on the Windows, macOS, Android, iOS, and
Linux operating systems, and also on web browsers. Users must
be at least 13 years old to create an account on Discord.
5
users see; rather, Discord emphasizes real time interaction and connection among friends and encourages
creativity and community around shared interests.
Messages are displayed in the order in which they are
sent.
The vast majority of Discord servers are inviteonly spaces, somewhat akin to modern-day social clubs,
for small groups of friends and communities. There are
also larger, more open communities, generally centered
around specific topics such as popular video games,
music artists, and hobbies. The most public of these
servers are “discoverable”—i.e., they can be found by
anyone on Discord using the service’s search tool, but
these public spaces represent a small percentage of the
total servers on Discord.
Finally, Discord does not depend upon an ad-based
business model. Discord is free to use, and currently
the vast majority of Discord’s users do not pay for the
service. Discord focuses on building premium features
that users want to buy (e.g., higher quality audio and
video streaming, larger file-sharing capabilities, animated rather than static emoji), providing access to
them via a monthly subscription. Because Discord’s
business does not rely on ads, the service is the product, not the people who use it. Discord takes care to
collect limited information about its users, which
among other things means it does not collect users’
geolocation data, or demographic data like gender or
family income. And Discord doesn’t sell the limited
user information it collects to anyone—not to data
brokers or other outside companies. In other words,
6
although likely swept up by Florida’s and Texas’s attempts to control editorial discretion, Discord simply
bears little resemblance to the respective legislatures’
assumptions about large social media services.
II.
Discord’s Approach to Safety
Discord’s mission is to bring people together
around shared experiences. In order to fulfill that mission, Discord works hard to create a safe, welcoming,
and inclusive space online—especially for teens. Discord believes that online communications services are
essential to the creation of community in the digital
age. In order to fully realize that potential, service providers must establish—and be permitted to enforce—
rules and practices to prevent, detect, and remove
harmful content.
Discord invests in both centralized moderation
and tools for groups using Discord to manage themselves. Approximately 15% of Discord’s employees focus on supporting safety and the service’s content
policies. This includes Trust and Safety agents, who
enforce Discord’s rules, and engineers who develop and
build moderation tools for both Discord and its users.
Discord’s Community Guidelines3 govern all user
interaction and content on Discord to help create safe
online communities. These Guidelines, informed by
guidance from policy experts and legal counsel, set out
rules that (a) clarify for users the legal limits on the
3
Available at https://discord.com/guidelines.
7
types of speech Discord is permitted to host and (b) reflect Discord’s own perspective regarding the kinds of
communities, content, and activity that Discord is prepared to welcome on its service. Under Discord’s Community Guidelines, users are prohibited, among other
things, from promoting, coordinating, or engaging in
harassment; using hate speech or engaging in other
hateful conduct; threatening to harm another individual or group of people; organizing, promoting, or
supporting violent extremism; soliciting, sharing, or
making attempts to distribute content that depicts,
promotes, or attempts to normalize child sexual abuse;
sharing content that glorifies, promotes, or normalizes
suicide or other acts of physical self-harm; sharing real
media depicting gore, excessive violence, or animal
harm; or sharing content that violates anyone’s intellectual property or other rights. Additionally, minors
are prohibited from engaging in sexual conduct, or any
conduct that puts their online or physical safety at
risk.
Defenders of the Texas and Florida laws claim
that platforms barely moderate and therefore prominent instances of moderation represent discrimination
against specific groups. But moderation is central to
platforms like Discord, and is achieved at great cost,
both monetary and in human effort. Enforcement of
the Community Guidelines requires significant proactive and reactive work to limit harmful content. In the
first quarter of 2023 alone, Discord received 117,042
user reports, of which 18,200, or 15.5% of the reports
received, identified violations of Discord’s Community
8
Guidelines leading to action taken. Discord also took
action on its own initiative to enforce its Community
Guidelines, issuing warnings in the first quarter of
2023 to 17,931 individual accounts and 2,143 servers,
and disabling 173,745 individual accounts and removing 34,659 servers for policy violations during that period. As part of its proactive enforcement efforts,
Discord has continued to invest in improving image
classifiers for content such as sexually explicit material, gore, and violent media. In Q2 2023, Discord was
able to proactively remove 99% of servers found to be
hosting child sexual abuse material (CSAM), without
waiting for third-party reporting.4 Discord has also embraced an ethic of transparency and knowledge sharing across a range of trust and safety issues. Discord
continues to educate users, join coalitions, build relationships with experts, and publish our safety learnings, including in our quarterly Transparency Reports.
Discord sets and enforces these Community Guidelines because it does not wish to become a haven for
child sexual abuse, advocacy of violence, hate speech,
and a range of speech adjacent to illegal conduct, even
4
Although CSAM is indisputably illegal and the Florida and
Texas laws purport to exempt anti-CSAM enforcement from their
scope, CSAM is still highly relevant to the analysis of these laws
for two reasons: (1) A server removed by Discord for having CSAM
may well contain substantial amounts of legal content, whose removal could trigger a lawsuit against Discord; (2) Not all servers
should be held responsible for CSAM posted by a user thereof. As
discussed below, it is possible to attack a server by posting content
that harms other users. But Discord’s attempts to identify responsible parties could also easily trigger a lawsuit claiming disparate
treatment of the same content in two different servers.
9
if the speech itself does not satisfy the legal requirements for incitement, conspiracy, or other unlawful
acts. Discord’s Community Guidelines reflect the company’s own values, and those of Discord’s employees.
But Discord’s Community Guidelines also reflect the
expectations of Discord’s users: users demand that
platforms establish rules that create and protect an
environment where online discussion is not undermined by harassment, trolling, doxing, threats, advocacy of violence, and other forms of abuse. Online
services that fail to maintain appropriate guidelines
suffer in the marketplace. See, e.g., Tarleton Gillespie,
Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions That Shape Social Media 35 (2018) (discussing platforms that have collapsed
when they no longer served users’ interests); Jonathan
Vanian, IBM suspends advertising on X after report
says ads ran next to antisemitic content, CNBC (Nov.
16, 2023), https://www.cnbc.com/2023/11/16/ibm-stopsadvertising-on-x-after-report-says-ads-ran-by-nazicontent.html.
In addition to Discord’s centralized Community
Guidelines, many groups that spend time together on
Discord maintain specific guidelines that apply only to
their own group. For example, the “Christ Centered
Christianity” religious community has rules that are
designed to protect the integrity of the Christian religious discussion that the group is organized to pursue.
That aim is reflected in Christ Centered Christianity’s
Rule 9: “The spreading/attempt to convert people to
faiths other than Christianity is prohibited. This is a
10
Christian server and we do not want the promotion of
other faiths here.” Another example is “Conservative,”
a group of political conservatives who run a discussion
of conservative politics. That group’s Rule 4 provides
that “Harassment, threats, intrusive direct messages,
and trolling are not welcome here.” Nor is the determination to avoid dissension within the group restricted
to Christians, or to conservatives. The “Progressive
Muslim” server enforces the following as its Rule 8:
“Keep this server a safe community for progressive
Muslims. This is not the place to debate against progressive Muslims. Targeting Muslims for their views is
strictly forbidden, even if it occurs in another server.”
For each of the groups mentioned, and for many
others on Discord, violations of these rules can result
in revocation of the violator’s group membership and
loss of access to the group’s server. And this is not surprising. The members of InviteChrist are interested in
having a discussion about Christian religion among
believers. The purpose of that particular group is not
to debate God’s existence, or to argue with atheists.
The members of Conservative are interested in having
a discussion among conservatives of conservative politics. The purpose of that particular group is not to engage in flame wars with liberals. The same logic also
applies to the “Progressive Muslim” server. In all three
cases, the groups’ own rules help ensure the kind of
discussion that the groups’ members wish to engage in.
What is happening on Discord, in short, is a 21st Century continuation of the practice that Alexis de Tocqueville, writing in 1835, characterized as particularly
11
American—that of forming associations to pursue a
common interest:
Americans of all ages, all conditions, and all
dispositions, constantly form associations.
They have not only commercial and manufacturing companies, in which all take part, but
associations of a thousand other kinds—religious, moral, serious, futile, extensive, or restricted, enormous or diminutive. The
Americans make associations to give entertainments, to found establishments for education, to build inns, to construct churches, to
diffuse books, to send missionaries to the antipodes; and in this manner they found hospitals, prisons, and schools. If it be proposed to
advance some truth, or to foster some feeling
by the encouragement of a great example,
they form a society. Wherever, at the head of
some new undertaking, you see the government in France, or a man of rank in England,
in the United States you will be sure to find
an association.
Alexis de Tocqueville, Democracy In America, Volume
2, p. 106 (Vintage Books 1840). Now, as then, a vibrant
culture of speech rests on a vigorously protected freedom of association—i.e., the freedom of groups to promote speech that supports their viewpoint and goals,
and to exclude speech that does not.
12
III. Discord’s Provision of Services Creates
Significant Associational Rights
Discord’s moderation efforts cannot be separated
from the association interests of the groups that selforganize on Discord. Discord—likely swept up by but
not accounted for under the Texas and Florida laws—
enables the digital equivalents of parades, book clubs,
worship circles, and other communities that have important communicative and associational interests
that rely on Discord’s service-wide moderation services. Centralized moderation by Discord allows communities to focus on the things that matter to them,
rather than being overwhelmed by unwanted, or even
harmful, content. Gillespie, supra, at 207 (“[M]oderation is the essence of platforms, it is the commodity
they offer. . . . Anyone could make a website on which
any user could post anything he pleased, without rules
or guidelines. Such a website would, in all likelihood,
quickly become a cesspool and then be discarded.”).
The Court has long recognized that the right to
associate entails a right to exclude: A group may need
to be able to limit its membership in order to carry out
its expressive purposes. Boy Scouts of America v. Dale,
530 U.S. 640, 647-48 (2000); Roberts v. United States
Jaycees, 468 U.S. 609, 622-23 (1984) (explaining that
“intrusion into the internal structure or affairs of an
association,” such as a “regulation that forces the
group to accept members it does not desire,” can unconstitutionally burden associational rights; “[f ]reedom
of association . . . plainly presupposes a freedom not to
associate”).
13
Even when important anti-discrimination principles justify public accommodations laws, this Court
has recognized that admitting a person is very different from requiring an organization to allow its members to behave in particular ways or to allow any and
all viewpoints. An animal rights organization may be
barred from discriminating on the basis of race, but
does not need to remain open to the viewpoint that
wearing fur is good when discussing how to prioritize
its activities; a Catholic discussion group need not allow proselytization by members of other religions.
Thus, prohibitions on discriminating against people on
the basis of their membership in protected classes are
generally permitted, but the Court has protected
groups against requirements that “impair the ability
of the group to express those views, and only those
views, that it intends to express.” Dale, 530 U.S. at 648.
The question is whether the government mandate “affects in a significant way the group’s ability to advocate
public or private viewpoints.” Id. (citing New York
State Club Assn., Inc. v. City of New York, 487 U.S. 1, 13
(1988)); Roberts, 468 U.S. at 627 (upholding antidiscrimination law applied to private association because
prohibition on gender discrimination imposed “no restrictions on the organization’s ability to exclude individuals with ideologies or philosophies different from
those of its existing members”).
Discord’s enforcement of its centralized Community Guidelines is designed to encourage and support
the creation and enforcement of more server-specific
rules by the communities themselves. Discord and its
14
users value the ability to create spaces that cannot
easily be overrun by hostile or irrelevant speech,
whether Holocaust denial in a history-focused group or
pro-anorexia advocacy in an eating disorder recovery
group. (Yes, there is an organized “pro-anorexia” movement. See Carmela Mento et al., Psychological Impact
of Pro-Anorexia and Pro-Eating Disorder Websites on
Adolescent Females: A Systematic Review, 18(4) Int. J.
Environ. Res. Public Health 2186 (2021)). This can include moderation that a court might deem viewpointbased or inconsistent. But as this Court explicitly held
in Dale, 530 U.S. at 651, “it is not the role of the courts
to reject a group’s expressed values because they disagree with those values or find them internally inconsistent” (citing Democratic Party of United States v.
Wisconsin ex rel. La Follette, 450 U.S. 107, 124 (1981)
(“[A]s is true of all expressions of First Amendment
freedoms, the courts may not interfere on the ground
that they view a particular expression as unwise or
irrational”); see also Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U.S. 707, 714 (1981)
(“[R]eligious beliefs need not be acceptable, logical,
consistent, or comprehensible to others in order to
merit First Amendment protection.”)).
Separately, because of the scale of platforms such
as Discord, a “consistency” requirement is as unachievable as a requirement that all public school teachers in
the U.S. use the exact same standards in grading English essays, on pain of monetary sanctions if a factfinder decides that two similar essays from students in
different states were graded differently. See Gillespie,
15
supra, at 74 (quoting trust and safety expert: “Given
the scale that Twitter is at, a one-in-a-million chance
happens 500 times a day. It’s the same for other companies dealing at this sort of scale.”). Even if a factfinder were allowed to tolerate an error rate
(something the laws at issue do not explicitly provide
for), the burdens of potential discovery into millions of
actions to look for “consistency” will chill even the most
basic content moderation. This is especially true if, as
the states contemplate, factfinders will be asked to examine whether different viewpoints were treated in
the same way. Gillespie, supra, at 77 (“What to do with
a questionable photo or a bad actor changes when
you’re facing not one violation but hundreds exactly
like it, and thousands much like it, but slightly different in a thousand ways. This is not just a difference of
size, it is fundamentally a different problem.”); James
Grimmelmann, The Platform Is the Message, 2 GEO. L.
TECH. REV. 217, 221-22 (2018) (explaining that a post
that decries eating Tide Pods and one that encourages
eating Tide Pods can be indistinguishable from the outside, given varied ways in which people communicate:
“The difficulty of distinguishing between a practice, a
parody of the practice, and a commentary on the practice is bad news for any legal doctrines that try to distinguish among them, and for any moderation
guidelines or ethical principles that try to draw similar
distinctions.”) (citations omitted).5
5
Defenders of the laws at issue here contend that all platforms will have to do to comply is to follow their own rules. But
because of the scale of user-supplied content, and the infinite
16
A prohibition on centralized moderation that limits the enforcement of policies against hate speech or
other generally unwanted content would likely expose
both Discord’s users and communities to a torrent of
discordant, disruptive speech. The Texas and Florida
laws force users to spend their limited time and local
moderation resources to focus on the worst problems—
problems that are better suited to centralized moderation—rather than shaping the specific kind of expressive communities they want to have.6 Indeed, only
inventiveness of humans seeking to make mischief, platforms will
risk punishing discovery and potential liability no matter what
they do. Given the scale and the entire range of human communication, there is no such thing as a fully specified content policy:
No guideline can be stable, clean, or incontrovertible;
no way of saying it can preempt competing interpretations, by users and by the platform. Categorical terms
like “sexually explicit” or “vulgar or obscene” do not
close down contestation, they proliferate it: what
counts as explicit? Vulgar to whom? All the caveats and
clarifications in the world cannot make assessment any
clearer; in truth, they merely multiply the blurry lines
that must be anticipated now and adjudicated later.
This is an exhausting and unwinnable game to play for
those who moderate these platforms, as every rule immediately appears restrictive to some and lax to others,
or appears either too finicky to follow or too blunt to do
justice to the range of human aims to which questionable content is put.
Gillespie, supra, at 72-73. And under the laws at issue here, a
factfinder’s disagreement with Discord’s level of detail, either in
its policies or its enforcement explanations, could expose Discord
to strict liability.
6
For example, bad actors sometimes coordinate “raids” on
servers, trying to overwhelm them with unwanted content. Discord’s policies and tools are more efficient and effective to protect
17
Discord can identify certain kinds of service-wide problems, such as coordinated action by harmful actors
across multiple servers, which is invisible to individual
users and servers. Discord’s centralized content moderation identifies and acts on systemic harms so that
users can focus on more productive conversations.
A community forced to spend its limited time and
energy on keeping out hate speech and speech that is
unwanted because of its viewpoint cannot develop its
own, affirmative vision for its expression. Functionally,
the effect would be like barring garbage collection in a
city: every individual community would have to devote
its own resources to hauling its own garbage, diverting
those resources from more productive and more individualized curation. See Dale, 530 U.S. at 653 (“As we
give deference to an association’s assertions regarding
the nature of its expression, we must also give deference to an association’s view of what would impair its
expression.”); cf. Gillespie, supra, at 93 (noting that, in
general, only a “relatively small” percentage of community members are willing to do the work of moderation); Brian Butler et al., Community Effort in Online
Groups: Who Does the Work and Why, in LEADERSHIP AT
A DISTANCE: RESEARCH IN TECHNOLOGICALLY SUPPORTED
GROUPS, 346 (ed. Suzanne Weisband, 2007) (similar
findings).
Proponents of the Texas and Florida laws argue
that, by hosting so much speech about so many
against raids than relying solely on individual moderators and
individual servers.
18
different topics, platforms like Discord lack any expressive interest in excluding (some of ) the rest. But
this Court has already rejected this argument, and for
good reason: Expressive associations regularly allow
some, but not total, viewpoint diversity; they need not
convince outsiders they reflect a coherent ideology. In
Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U.S. 557 (1995), for example,
the Court addressed and rejected the argument that
the protected parade had no coherent expressive
theme, and that it let most groups march with their
chosen banners. “[A] private speaker does not forfeit
constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter
of the speech.” Id. at 569-70; see also Dale, 530 U.S. at
655 (noting that “the purpose of the St. Patrick’s Day
parade in Hurley was not to espouse any views about
sexual orientation, but we held that the parade organizers had a right to exclude certain participants nonetheless” and that “the First Amendment simply does
not require that every member of a group agree on
every issue in order for the group’s policy to be “expressive association”).7
7
For similar reasons, neither Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (“FAIR”),
nor PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980),
suggest that Texas and Florida have the power to force Discord to
host speech expressing a specific viewpoint to which it, or the
members of a particular Discord community, object. Both FAIR
and PruneYard involved the constitutionality of federal (FAIR)
and state (PruneYard) rules creating some right of access for
19
What the Court said of the parade in Hurley is
true both of Discord as a whole and of many individual
Discord servers:
Rather like a composer, the Council selects
the expressive units of the parade from potential participants, and though the score may
not produce a particularized message, each
contingent’s expression in the Council’s eyes
comports with what merits celebration on
that day. Even if this view gives the Council
credit for a more considered judgment than it
actively made, the Council clearly decided to
exclude a message it did not like from the
communication it chose to make, and that is
enough to invoke its right as a private speaker
to shape its expression by speaking on one
subject while remaining silent on another.
515 U.S. at 574-75.
speakers to private property. In FAIR, the Court upheld the federal government’s conditioning of law schools’ receipt of federal
funding on providing equal access to military recruiters—the law
regulated conduct, the Court held; any speech regulation was incidental. 547 U.S. at 60 (“As a general matter, the Solomon
Amendment regulates conduct, not speech. It affects what law
schools must do—afford equal access to military recruiters—not
what they may or may not say.”) (emphasis in original). Likewise,
in PruneYard the Court upheld state constitutional provisions
granting access to private property (a shopping center) to exercise
free speech and association rights. As the PruneYard Court noted,
“no specific message is dictated by the State to be displayed on
appellants’ property. There consequently is no danger of governmental discrimination for or against a particular message.” 447
U.S. at 87. In neither of these cases does the challenged regulation offend First Amendment association rights in the way that
the Texas and Florida viewpoint-based speech mandates do.
20
Even more than in Hurley, the Florida and Texas
laws change the message of Discord’s own speech—its
standards for what it allows and prohibits—treating
Discord’s speech itself as a public accommodation. Id.
at 573. They substitute the states’ judgments about
what Discord should allow for Discord’s own. But
“[u]nder this approach any contingent of protected
individuals with a message would have the right to
participate in petitioners’ speech, so that the communication produced by the private organizers would be
shaped by all those protected by the law who wished to
join in with some expressive demonstration of their
own. This use of the State’s power violates the fundamental rule of protection under the First Amendment,
that a speaker has the autonomy to choose the content
of his own message.” Id. at 573.
The problem can be illustrated with a tragic example mentioned earlier: pro-anorexia content. “Pro-ana”
groups have, in the past, converged on platforms that
allow them. Gillespie, supra, at 67-68. Discord has no
desire to promote anorexia.8 And online eating disorder recovery and support groups in general can be lifesaving for their members, meaning that Discord
should not, and does not, attempt to screen out all
8
Discord states in a public-facing resource regarding its policies against promoting suicide and self-harm content that Discord will take action against users who, inter alia, give “advice on
how to commit an act of self-harm,” “[n]ormaliz[e] or encourag[e]
self-harming behaviors,” or “[d]iscourag[e] individuals from
seeking treatment for self-harming behaviors.” Discord, Suicide
and Self-Harm Explainer, https://discord.com/safety/suicide-selfharm-policy-explainer.
21
eating-disorder-related content. But under the Florida
and Texas laws, Discord would only be able to allow
eating disorder recovery groups if it also allowed proanorexia groups. Under Florida’s law, it would also
have to allow pro-anorexia content from or about political candidates and “journalistic organizations.” This
would fundamentally change the nature of the communities that Discord wishes to nurture. And it would
fundamentally impair the mission of eating disorder
support groups on Discord (and elsewhere).
IV.
Discord’s Structure Is Incompatible with the
Texas and Florida Laws
As explained above, moderation by Discord assists
individual communities’ associational interests. By assuming public access and purely centralized moderation, Florida and Texas are interfering not just with
“public” speech but with a large number of invitationonly or limited-access speech forums. The states aimed
at what they saw as the new public square, but legislated covering the new coffee shops, living rooms, and
bowling alleys. Put differently, the Florida and Texas
laws will interfere with the countless associations that,
as Tocqueville recognized, have always been crucial to
American democracy.
Given the costs and risks involved with forcing
Discord into the Facebook-shaped provisions of the
Florida and Texas laws, future services will be understandably hesitant to risk anything but copying the
legislators’ models of a “social media” service. Helping
22
communities moderate their own portions of a service—much less building tools and training programs
to support community moderation—would be risky because that service could be held liable for encouraging
or allowing “censorship” by the communities it hosts.
This will suppress new forms of communication and
association to the detriment of viewpoint diversity,
both in the public square and in smaller communities.
Moderation by Discord is important to individual
communities in a variety of situations, mundane and
unexpected. One common problem is that a server’s
owner or active moderators may not be online to monitor their community—a real risk with volunteer, unpaid hobby positions—and the only way to enforce
either Discord’s rules or a particular community’s
rules is for Discord to step in. Without active moderation, off-topic and abusive content can easily take over.
Without Discord’s assistance, users who don’t have
moderator permissions in that server would quickly
find it unusable, losing the benefits of the speech and
association found in that server, because no one else
has the power to enforce the previously set rules.
Nor are volunteer moderators necessarily aligned
with the interests of the community on a particular
server. As reporter Casey Newton has explained:
[M]embers of the [Discord] team had to decide
who was responsible for what happened in a
server gone bad. If your first thought was “the
server’s owner,” that was mine too. But sometimes moderators get mad at server owners,
and retaliate against them by posting content
23
that breaks Discord’s rules—a kind of
scorched-earth policy aimed at getting the
server banned.
. . . Some users are automatically given moderator permissions when they join a server. If
the server goes rogue and the “moderator” has
never posted in the server, why should they be
held accountable?
Moreover, team members said, some server
owners and moderators . . . weren’t actually
aware of the bad behavior in a server—either
because it’s too big and active to read every
post, or because they haven’t logged in lately.
Casey Newton, Inside Discord’s reform movement for
banned users, Platformer (Oct. 19, 2023), https://www.
platformer.news/p/inside-discords-reform-movement-for.
Florida’s and Texas’s laws remove the kind of case-bycase discretion needed to manage these situations, and
threaten Discord with a lawsuit for any move that it
makes to rein in a rogue server or moderator that
might be deemed “inconsistent” with past moderation.9
9
That is not the end of the mismatch between the laws at
issue and Discord’s design. Discord also allows third party developers to build “apps” that can add functionality to Discord’s
services, and some of the most popular apps are moderationoriented. These apps can be found through Discord’s “App Directory,” and Discord allows certain verified apps to monetize user
subscriptions. Under the laws at issue here, Discord could risk
liability for authorizing or verifying those apps, which allow moderators to implement viewpoint-based rulesets (e.g., against categories of words deemed offensive by the community, against
“spoilers” for specific media, against support for an entity that a
particular Discord community is set up to oppose, and so on). Or,
24
While most Discord servers are nonpublic, it is
common for many of the largest servers to make themselves discoverable on Discord and other spaces on the
internet, which for example, helps an artist build a
community for their fans. But as a server acquires
more and more users, so too does its reliance on Discord’s own moderation. Discord acts as a backstop
against coordinated and harmful activity, while its
tools also support a given community’s unique moderation practices. Discord’s platform guidelines require
groups to police themselves if they want to be broadly
discoverable; Florida’s and Texas’s laws threaten to
make that impossible.
Because the laws were not written with an understanding of how large platforms vary, multiple traps
abound for services that don’t work the way Texas’s
and Florida’s laws assume. For example, Florida’s law
allows journalistic organizations and political candidates to sue platforms if they “limit . . . the exposure
[of the plaintiff ’s] content or material . . . to other users[.]” Fla. Stat. §501.2041(1)(f ); §501.2041(2)(j). But
all Discord servers limit the exposure of a user’s content or material to other users in that server, by Discord’s design. Unlike with Facebook or X, there is no
Discord “homepage” where all Discord content is available to the world by default, nor does a given Discord
because Discord allows apps that exclude certain offensive terms,
it could be forced to allow and verify apps that enforce pro-segregation, pro-anorexia, or any other harmful viewpoints. And such
apps would be publicly available, affecting the environment even
for users who didn’t choose to be part of such toxic communities.
25
user have her own “homepage” where her public content is available to the world by default. Because each
Discord server is a separate community, Discord could
even be sued for refusing to allow journalistic organizations or political candidates to join every server,
since the laws at issue do not immunize design decisions of this type.
Likewise, both Texas and Florida seek to require
detailed disclosure of all individual moderation decisions, which presumes that there is only centralized
moderation. See Tex. Sec. 120.103; Fla. Stat.
§501.2041(2)(d). But Discord does not track moderators’ decisions across all its servers, nor does it set the
full policies that moderators may enforce. It is unable
to notify users, whether in advance or after the fact, of
changed rules that it does not set or violations of individual server policies. It does not define terms used by
individual servers. This hub-and-spoke model allows
custom policies for each community, supporting their
own rules along with Discord’s baseline Community
Guidelines, but it also precludes any full listing of policies across the Discord platform. And once again, even
if Discord explains itself thoroughly, it is subject to
litigation, discovery, and potentially strict liability for
each act of moderation if a factfinder disagrees with
the level of detail it provides.
Texas (though not Florida) attempts to distinguish
between platform and user actions, but again in a way
that fails to account for the associational design of
platforms such as Discord. See Texas Sec. 143A.006
(“This chapter may not be construed to prohibit or
26
restrict a social media platform from authorizing or facilitating a user’s ability to censor specific expression
on the user’s platform or page at the request of that
user.”). A member of a Discord server does not have a
“platform” or “page.” Even if courts treated server owners as “users” and servers as “platforms,” moderators
are not necessarily, and often aren’t, owners of the
server. Thus, their use of moderation tools like apps—
even if done to protect the community and enforce its
specific rules—does not seem to fall within this exclusion, because it would be “censoring” other users.
What these specific examples demonstrate is that
intervening in community moderation is a zero-sum
game: Expanded rights against moderation can come
only at the expense of contracted community free association rights. The communities do not own the service
and cannot effectively police or clean up their servers
by themselves; Discord must support a server’s moderation decisions and track wrongdoers across the entire
Discord service. In other words, the association rights
of Discord communities depend on the backstop of centralized moderation. Communities can get hijacked,
and Discord’s intervention can be necessary to restore
control to the members. But in such cases, there are
always at least two views of what the server is “about,”
and therefore it will always be possible to accuse Discord of making a viewpoint-based or “inconsistent” determination.
Because the laws do not contemplate Discord’s
structure, they are also murky enough that Discord
could be forced to restore content removed by a
27
community moderator. For example, Reddit has been
sued under Texas HB 20, for a volunteer moderator’s
decision to ban a user who called the fictional character Wesley Crusher a “soy boy” in the r/StarTrek subreddit. See Petition: Small Claims Case, Cox v. Reddit,
Inc., No. S22-87J1 (Just. Ct. Denton Cnty., Tex. May 17,
2022) (plaintiff claimed to have been “banned and/or
de-platformed from r/StarTrek for posting a lawful
opinion about a fictional character”); cf. Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045 (9th
Cir. 2017) (finding that unpaid moderators could have
been acting as site’s agents). An allegation that Discord engaged in viewpoint discrimination in supporting different moderators or focusing enforcement
efforts on specific servers, for example, could force Discord to engage in costly discovery and litigation if it
didn’t restore content that a community’s own members had decided not to tolerate.
Discord is not very much like more open social media sites like Facebook or X, the focus of the states’ ire.
Discord serves groups that are trying to foster associational benefits: in many ways, users are not members
of “Discord” as a whole, but of particular servers. Interfering with Discord’s ability to remove speech inimical
to those groups’ purposes frustrates their ability to organize their own conversations. The laws at issue
therefore harm both Discord’s own associational interests in curating the kinds of groups it wants to foster
and the associational interests of its user communities.
---------------------------------♦---------------------------------
28
CONCLUSION
For the foregoing reasons, Discord respectfully
urges this Court to reverse the decision of the Fifth
Circuit, and to affirm the decision of the Eleventh Circuit as to the issues on which the Court has granted
review.
Respectfully submitted,
REBECCA TUSHNET
Counsel of Record
CHRISTOPHER JON SPRIGMAN
LEX LUMINA PLLC
745 Fifth Avenue, Suite 500
New York, NY 10151
rtushnet@lex-lumina.com
(646) 898-2055
December 7, 2023
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.