Amicus Curiae Brief — Ashley Moody, Attorney General of Florida, et al., Petitioners v. NetChoice, LLC, dba NetChoice, et al.

Supreme Court briefJan 23, 2024

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Nos. 22-277 and 22-555

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------ASHLEY MOODY,

Attorney General of Florida, et al.,

Petitioners,

NETCHOICE, LLC, dba

NETCHOICE, et al.

---------------------------------♦--------------------------------NETCHOICE, LLC, dba

NETCHOICE, et al.,

Petitioners,

KEN PAXTON,

Attorney General of Texas.

---------------------------------♦--------------------------------On Writs Of Certiorari To The

United States Courts Of Appeals

For The Fifth And Eleventh Circuits

---------------------------------♦--------------------------------BRIEF OF ITEXASPOLITICS, LLC D/B/A THE

TEXAN & POWERHOUSE MANAGEMENT, INC. AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

IN 22-277 AND RESPONDENT IN 22-555 ON

COMMON CARRIER FINDINGS AND TEXAS

INDIVIDUAL EXPLANATION REQUIREMENTS

---------------------------------♦--------------------------------W. SCOTT MCCOLLOUGH

EVAN M. GOLDBERG

Counsel of Record

MCCOLLOUGH LAW FIRM, P.C.

2290 Gatlin Creek Road

EVAN MILES GOLDBERG, PLLC

Dripping Springs, TX 78620 400 East 57th Street, Ste. 4M

New York, NY 10022

Tel: (212) 888-6497

egoldberg@emglawfirm.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

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

iii

INTERESTS OF THE AMICI ..............................

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

ARGUMENT ........................................................

Texas And Florida Properly Recognized

That Platforms Are Common Carriers Under Their Common Law .............................

A. Federal Courts Must Apply The

States’ Highest Court Common Law

Precedent, Not Precedent Developed

By Federal Courts Interpreting The

Federal Communications Act ..............

1. Federal Courts Cannot Change A

State’s Common Law Or Decide

What The State’s Common Law

“Should” Be .......................................

2. Federal Precedent Interpreting

The Communications Act Does Not

Preempt Or Overrule Texas And

Florida Common Law ......................

B. The States Developed The Common Law

For Common Carriage ...........................

1. Many Firms In Different Fields Can

Be Common Carriers........................ 10

2. Holding Out ......................................

3. A Common Carrier Holds Out To Indifferently Serve ............................... 12

TABLE OF CONTENTS—Continued

Page

4. Common Carriers Cannot Unreasonably Discriminate ............................. 13

5. Common Carriers Cannot Reserve

The Right To Discriminate, Especially

If It Hinders Competition .................. 14

6. Texas And Florida Still Consider The

Public’s Interest ................................ 16

C. The Two States Did Not Impose Common Carrier Status; They Merely Recognized The Platforms For What They

Already Are .......................................... 17

D. Neutral State Law Nondiscrimination

Obligations Do Not Violate Platforms’

First Amendment Rights ..................... 18

II.

HB20 Section 2’s Disclosure, Complaint,

And Appeal Requirements Do Not Unduly

Burden The Platforms ............................... 20

A. Large Social Media Firms Already Voluntarily Comply with the European

Union’s Digital Services Act and

Other Individualized Notice Principles ....................................................... 21

B. HB20 Section 2’s Disclosure, Complaint,

and Appeal Requirements Benefit the

Platforms and Encourage User Confidence in Platform Integrity ................... 26

CONCLUSION..................................................... 28

iii

TABLE OF AUTHORITIES

Page

CASES

AT&T Communs. of Md., Inc. v. Comptroller of

the Treasury, 405 Md. 83 (Md. 2008) ...................... 9

Ark. Educ. TV Comm’n v. Forbes, 523 U.S. 666

(1998) .......................................................................19

Chevallier v. Straham, 2 Tex. 115 (Tex. 1847) ...........13

Columbia Broadcasting System, Inc. v. Democratic Nat’l Committee, 412 U.S. 94 (1973) .............19

Denton v. Denton Home Ice Co., 18 S.W.2d 606

(Tex. 1929) ...............................................................17

Erie R.R. v. Tompkins, 304 U.S. 64 (1938) .............. 7, 10

FCC v. Midwest Video Corp., 440 U.S. 689 (1979) .........9

Frontier Broad. Co. v. Collier, 1958 FCC LEXIS

43 (April 2, 1958) .......................................................8

Gray v. Western Union Tel. Co., 87 Ga. 350

(Ga. 1891) .......................................................... 12-15

Gurley v. Rhoden, 421 U.S. 200 (1975) .........................7

Houston & T. C. R. Co. v. Rust & Dinkins, 58 Tex.

98 (Tex. 1882) ..........................................................14

Indian River Steam-Boat Co. v. East Coast

Transp. Co., 28 Fla. 387 (Fla. 1891) .................. 11, 15

Industrial Radiolocation Service, 5 F.C.C. 2d 197

(1966) .........................................................................8

Johnson v. Pensacola & P. R. Co., 16 Fla. 623

(Fla. 1878)................................................................13

TABLE OF AUTHORITIES—Continued

Page

Lone Star Steel Co. v. McGee, 380 F.2d 640 (5th

Cir. 1967) .................................................................18

Manhattan Cmty. Access Corp. v. Halleck, 139

S. Ct. 1921 (2019) ....................................................18

Merrill v. Cahill, 8 Mich. 55 (Mich. 1860) ..................10

Miami Laundry Co. v. Florida Dry Cleaning &

Laundry Bd., 134 Fla. 1 (Fla. 1938) .......................17

Nat’l Ass’n of Reg. Util. Comm’rs v. FCC, 525

F.2d 630 (D.C. Cir. 1976) ............................... 8, 11, 12

Nat’l Ass’n of Reg. Util. Comm’rs v. FCC, 533

F.2d 601 (1976) .............................................. 9, 11, 12

NetChoice, LLC v. AG, Fla., 34 F.4th 1196 (11th

Cir. 2022) ............................................................... 5, 9

NetChoice, L.L.C. v. Paxton, 49 F.4th 439 (5th

Cir. 2022) ....................................................... 6, 10, 15

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

(1969) .......................................................................19

Sandford v. Railroad Co., 24 Pa. 378 (Pa. 1855),

cited by Indian River Steam-Boat Co. v. East

Coast Transp. Co., 28 Fla. 387 (Fla. 1891) ..............11

Semon v. Royal Indemnity Co., 279 F.2d 737 (5th

Cir. 1960) .................................................................14

Sims v. State, 1921 OK 68 (Okla. 1921) .....................11

Southern Bell Tel. & Tel. Co. v. Nineteen Hundred

One Collins Corp., 83 So. 2d 865 (Fla. 1955) ..........17

Texarkana v. Wiggins, 151 Tex. 100 (Tex. 1952) ........17

TABLE OF AUTHORITIES—Continued

Page

United States Telecom Ass’n v. FCC, 855 F.3d

381 (D.C. Cir. 2017) .................................................17

United States v. California, 297 U.S. 175 (1936) .......18

West Coat Naval Stores Co. v. Louisville & N. R.

Co., 121 F. 645 (5th Cir. 1903) .................................15

Western Union Telegraph Co. v. Call Publishing

Co., 181 U.S. 92 (1901) ............................................10

Woolsey v. National Transp. Safety Bd., 993 F.2d

516 (5th Cir. 1993)............................................. 12-14

STATUTES

47 U.S.C. §§ 153, et seq..................................................3

47 U.S.C. § 153(50) .................................................... 8, 9

47 U.S.C. § 153(51) ........................................................8

47 U.S.C. § 153(53) ........................................................8

47 U.S.C. § 332(c)(1)(A) ...............................................11

Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56 ................................................9

Tex. Bus. & Com. Code §§ 120.051-053 .... 4, 20, 21, 24-28

OTHER AUTHORITIES

Alan Stone (1991), Public Service Liberalism:

Telecommunications and Transitions in Public Policy, Princeton University Press ....................10

TABLE OF AUTHORITIES—Continued

Page

Br. for Babylon Bee, LLC et al. as Amici Curiae

Supporting Def.-Appellant Paxton, NetChoice,

LLC v. Paxton, No. 21-51178, 49 F.4th 439 (5th

Cir. 2022) ........................................................... 15, 26

Br. for Babylon Bee, LLC et al. as Amici Curiae

in Support of Appellant’s Mot. To Stay Prelim.

Inj. Pending Appeal, Netchoice, LLC v. Paxton,

No. 21-51178 (5th Cir. 2021) ...................................27

Br. of Amici Curiae Babylon Bee, LLC et al. in

Opp’n to Pl.’s Mot. for Prelim. Inj., Netchoice,

LLC v. Paxton, No. 1:21-cv-00840-RP (W.D.Tex.

2021) ........................................................................20

Br. of Amici Curiae Prof. Philip Hamburger et al.

in Support of Resp’t’s Opp’n to Appl. to Vacate

Stay, Netchoice, LLC v. Paxton, No. 21A720,

U.S. (2022) ...............................................................20

DSA Transparency Database: Submission of

Clear and Specific Statements, European Commission, https://transparency.dsa.ec.europa.eu/

page/documentation.#submission-of-clear-andspecific-statements (accessed Jan. 17, 2024).... 22, 23

International Covenant on Civil and Political

Rights, art. 19, Dec. 16, 1996, 999 U.N.T.S. 171,

https://www.ohchr.org/en/instruments-mechanisms/

instruments/international-covenant-civil-andpolitical-rights#article-19 (accessed Jan. 17,

2024) ........................................................................26

vii

TABLE OF AUTHORITIES—Continued

Page

Letting the Sun Shine In: Transparency and

Accountability in the Digital Age, UNESCO,

2021, https://unesdoc.unesco.org/ark:/48223/

pf0000377231 (accessed Jan. 17, 2024) ..................25

Matt Perault, Section 230 Reform: A Typology

of Platform Power, CPI ANTITRUST CHRON.,

May 2021 .................................................................26

Questions and Answers: Digital Services Act,

EUROPEAN COMMISSION, https://ec.europa.eu/

commission/presscorner/detail/en/QANDA_20_

2348 (accessed Jan. 18, 2024) .................................23

Robert Bork, The Anti-Trust Paradox (Bork Publishing 2021) ............................................................28

Shaping Europe’s Digital Future, EUROPEAN

COMMISSION, https://digital-strategy.ec.europa.

eu/en/policies/digital-services-act-package (accessed Jan. 16, 2024) ..............................................21

The Santa Clara Principles on Transparency and

Accountability in Content Moderation, https://

santaclaraprinciples.org/ (accessed Jan. 17, 2024) .......25

The Texan, Facebook (Jan. 19, 2024), https://www.

facebook.com/thetexanmedia/?checkpoint_src=any.......16

The Texan, Instagram (Jan. 19, 2024), https://www.

instagram.com/thetexannews/ ................................16

The Texan, Twitter (Jan. 19, 2024), https://twitter.

com/thetexannews ...................................................16

Velazco, E.U.’s Sweeping Rules for Big Tech,

Washington Post (Aug. 30, 2023) ............................22

INTERESTS OF THE AMICI

Amici include:1

●

iTexasPolitics, LLC d/b/a The Texan is a

privately-held corporation. The Texan publishes an online news website called The

Texan, which focuses on news and current

events in the Lone Star State. Established on

April 29, 2019, The Texan reports news at

www.TheTexan.news. The Texan employs

journalists committed to traditional reporting

standards and rigorous editorial processes.

Unlike social media platforms, The Texan is

subject to legal responsibilities under slander

and libel laws, balancing First Amendment

protections with accountability. The Texan

supports HB20, advocating for clear legal distinctions between social media platforms and

traditional news sources. This distinction is

crucial for journalistic integrity and informed

democracy. iTexasPolitics, LLC participated

as an Amicus before the Fifth Circuit.

●

PowerHouse Management, Inc. is a privately-held corporation that managed several

Internet companies for over 30 years, starting

with Texas.Net, one of the first Internet access

providers in Texas. The family of companies

soon grew to include Giganews, Inc., which

offered distributed discussion system or

No counsel for a party authored this brief, in whole or in

part, and no person other than Amici, their members, or their

counsel made any monetary contribution to its preparation or

submission.

“Usenet” service. Giganews became one of the

largest global Usenet providers with customers over 170 countries and offers a non-advertiser supported and largely unmoderated

discussion forum. As such, it is a kind of precursor to today’s social media platforms, but

without the censorship. Golden Frog, GmBH

offers privacy-protective no-logging Virtual

Private Network (“VPN”) service under the

name “VyprVPN.” Also in the family of companies was Data Foundry, LLC, which owned

and operated several data centers that allowed customers to collocate Internet, computing and networking equipment. Giganews

and Golden Frog participated as Amici before

the Fifth Circuit and district court. Although

all those operating companies have been since

divested, the experience gained from managing them provided useful insight on freedom

of speech and the need to prevent content censorship by powerful multi-national corporations, especially those that are common

carriers. PowerHouse seeks to aid the Court

by fleshing out Texas and Florida common

carriage precedent and its relationship to uncensored online discourse, along with the need

for consumer protections like those afforded

by HB20 Section 2’s transparency and notice

requirements.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

A federal court charged with deciding whether a

state law is constitutional does not decide what state

law “should” be. It interprets the law by applying precedent from the state’s highest court.2 Then the federal

court decides whether the state enactment or common

law, so construed, violates the U.S. Constitution or

other federal law. Similarly, precedent interpreting the

federal Communications Act (47 U.S.C. §§ 153, et seq.)

does not control Texas and Florida common law. The

Eleventh Circuit diverged from these principles. The

Fifth Circuit adhered to them.

The Florida and Texas bills do not conscript platforms into common carrier status. Both state legislatures properly found the platforms already meet the

common law test for common carriage as developed by

their respective high courts.

A state does not violate the Constitution by imposing content and viewpoint neutral restriction on

common carriers’ exercise of purported “editorial discretion.” Texas HB20 Section 7 does not require platforms to speak, nor does it restrain their own speech.

Similarly, the portions of Florida SB7072 that are

content-neutral and do not compel platform speech do

not violate the platforms’ First Amendment rights.

Amici herein respectfully submit state-specific precedent

from Texas and Florida concerning common carriage, as articulated by the highest courts of each state.

Texas HB20 Section 2, as outlined in Tex. Bus. &

Com. Code (“TCPRC”) §§ 120.051-053, (“Section 2”) is

a consumer protection measure that ensures transparent and fair content moderation practices. Section 2

mandates clear disclosure of platform policies and

community standards in user-friendly language and

requires equitable internal dispute resolution processes. It ensures that all users are treated equally, especially when facing content moderation actions,

thereby upholding First Amendment principles without placing excessive burdens on the platforms.

Section 2’s approach to content moderation aligns

with international standards like the EU’s Digital Services Act (“DSA”), demonstrating that platforms can

feasibly comply with these regulations without significant operational challenges or burdens. This alignment suggests a global movement towards more

transparent digital spaces, fostering informed user

choices and bolstering confidence in platform integrity.

Section 2 catalyzes innovation in content moderation technology, with its requirements potentially driving advancements in automated moderation tools. The

integration of an efficient appeals process enhances

user trust and positions platforms for increased engagement and revenue growth. Ultimately, Section 2

represents a balanced, content-neutral strategy that

upholds consumer welfare and adheres to global standards for digital platform transparency and accountability.

---------------------------------♦---------------------------------

ARGUMENT

Texas And Florida Properly Recognized That

Platforms Are Common Carriers Under Their

Common Law

Texas HB20 Sec. 1(3) finds that “Social media platforms function as common carriers, are affected with a

public interest, are central public forums for public debate, and have enjoyed governmental support in the

United States.” Similarly, Florida SB7072 Sec. 1(6) provides that “Social media platforms hold a unique place

in preserving first amendment protections for all Floridians and should be treated similarly to common carriers.” Each state’s legislative finding was premised on

that state’s own common law on common carriage.

The Eleventh Circuit relied on precedent dealing

with statutory common carriers under the federal

Communications Act. It held that social media platforms “should be treated more like cable operators . . .

than traditional common carriers,” NetChoice, LLC v.

AG, Fla., 34 F.4th 1196, 1203 (11th Cir. 2022) (emphasis added), and ruled that Congress’ statutory treatment under the Communications Act “is strong

evidence that they are not common carriers.” Id., 34

F.4th at 1221. The Eleventh Circuit did not rely on

Florida state supreme court precedent for guidance on

what a Florida common carrier is under Florida common (or even statutory) law. The Eleventh Circuit did,

however, acknowledge that common carriers have “diminished First Amendment rights.” 34 F.4th at 1221.

Fifth Circuit Judge Oldham mined history and

common law precedent and concluded that the Texas

legislative finding is legally supportable. NetChoice,

L.L.C. v. Paxton, 49 F.4th 439, 469-78 (5th Cir. 2022).

This deep historical and analytical analysis yielded

the right result as to Texas and should be adopted by

this Court. The same approach must be taken for

Florida because federal courts do not make state law.

When a federal court exercising federal question jurisdiction is called to decide whether a state law is constitutional it does not properly undertake to decide what

state law “should” be, perhaps by reference to a federal

statute. It interprets the law by applying precedent

from the state’s highest court. Then the federal court

decides whether the state enactment or common law,

so construed, violates the Constitution or other federal

law.

As Judge Oldham found, the social media platforms meet the Texas common law test for common

carriage. 49 F.4th at 473-78. The Platforms hold themselves out to serve all members of the public without

individualized bargaining: they are willing to accept

any user that agrees to their non-negotiable terms of

service. 22-255 J.A.217a-218a. Any person can open an

account immediately upon acceptance of those terms.

22-255 J.A.70a; 22-277 J.A. 72, 131, 151.

A. Federal Courts Must Apply The States’

Highest Court Common Law Precedent,

Not Precedent Developed By Federal

Courts Interpreting The Federal Communications Act

1. Federal Courts Cannot Change A

State’s Common Law Or Decide What

The State’s Common Law “Should” Be

The Eleventh Circuit, the platforms and some

platform-sympathetic Amici assume that federal courts

have the power to independently assess whether Texas

and Florida common law is satisfactory or even decide

what the states’ common law “should” be. But this is

not permissible under the modern application of Erie

R.R. v. Tompkins, 304 U.S. 64 (1938).3 Under Erie the

federal courts must take the state law as it is and then

see if it passes Constitutional muster.

The Court is not bound by the two states’ legislative findings. Here, however, the legislative findings

comport with each state’s precedent as declared by the

states’ highest courts and they deserve some deference.

Erie was a diversity jurisdiction case, but its principles also

apply when the court is exercising federal question jurisdiction.

See, e.g., Gurley v. Rhoden, 421 U.S. 200, 208 (1975) (state supreme court holdings resolved “legal incidence of state excise tax.”

Since the federal government was not the purchaser the constitutional challenges failed).

2. Federal Precedent Interpreting The

Communications Act Does Not Preempt

Or Overrule Texas And Florida Common Law

The platforms and supporting Amici, echoing the

Eleventh Circuit, assert platforms cannot be common

carriers because they are not telecommunications carriers under the federal Communications Act. See 47

U.S.C. § 153(51). The platforms are not Communications Act telecommunications carriers. The communication they handle is done “via telecommunications”

but their finished service is not itself “telecommunications” because platforms process user-supplied data.

47 U.S.C. § 153(50). Their offering is therefore not a telecommunications service (§ 153(53)) and they are not

§ 153(51) telecommunications carriers. This statutory

treatment, however, does not change the common law

outcome. See Part II.B.1. It is relevant only as to the

federal Communications Act.

The federal statute and FCC rules also contain a

criterion that is not a part of the common law, namely

that “the system be such that customers ‘transmit

intelligence of their own design and choosing.’ ” The

Federal Communications Commission (“FCC”) administratively crafted this qualifying criterion starting in

the late 1950s. See Frontier Broad. Co. v. Collier, 1958

FCC LEXIS 43, *9 (April 2, 1958); Industrial Radiolocation Service, 5 F.C.C. 2d 197, 202 (1966). Federal

courts began to use it for purposes of applying the federal Communications Act. See, e.g., Nat’l Ass’n of Reg.

Util. Comm’rs v. FCC, 525 F.2d 630, 641 (D.C. Cir.

1976), cert. denied, 425 U.S. 992 (“NARUC I”); Nat’l

Ass’n of Reg. Util. Comm’rs v. FCC, 533 F.2d 601, 60809 (1976) (“NARUC II”); FCC v. Midwest Video Corp.,

440 U.S. 689, 701 (1979). The Telecommunications Act

of 1996, Pub. L. No. 104-104, 110 Stat. 56, Sec. 3, added

the concept through different words as part of the statutory definition of “telecommunications” in what is

now 47 U.S.C. § 153(50).

Texas and Florida do not require that an entity allow users to transmit intelligence of their own design

and choosing as a common carrier prerequisite. Most

states still do not use this concept for any communications regulation purpose. Only one state (Maryland)

has employed the phrase. See AT&T Communs. of Md.,

Inc. v. Comptroller of the Treasury, 405 Md. 83, 98 (Md.

2008). This formulation may be part of the test in

Maryland, but it does not bind Texas or Florida. The

Eleventh Circuit nonetheless held that since users are

not allowed to “transmit messages of their own design

and choosing” platforms should not be common carriers. 34 F.4th at 1220. That court wrongly engrafted a

federal administrative and now statutory definitional

criterion for what is “telecommunications” onto the

Florida common law test for common carriage.

B. The States Developed The Common Law

For Common Carriage

The American states developed the early precedent by borrowing and then applying common law precepts from England. For the first hundred or so years,

common carriage was resolved through the common

law and principally at the state level. “Before the arrival of regulatory agencies, policies for public utilities

were made by judges employing an evolving common

law and legislators promulgating rules in new situations.” Alan Stone (1991), Public Service Liberalism:

Telecommunications and Transitions in Public Policy,

Princeton University Press, p. 26. Common carriage

was primarily a state-based evolution through state

courts and state legislatures promulgating rules in

new situations. The federal system did not develop a

corollary common law even before Erie.4

1. Many Firms In Different Fields Can

Be Common Carriers

Common carriage is not reserved to those that

transport people and commodities. Grist-mills and

cotton gins—which processed user-supplied grain or

cotton in a manner conceptually similar to data processing of user-supplied information—were common

carriers or assigned similar treatment by statute in

many states. See, e.g., Merrill v. Cahill, 8 Mich. 55, 60

As Judge Oldham notes, 49 F.4th at 469, 472-73, and 47879, this Court was sporadically called upon to restrict state

common carrier regulation through federal constitutional attacks. Except for the now-discredited Lochner period and racial

segregation line of cases, the Court generally upheld state nondiscrimination mandates. To his list we would only add Western

Union Telegraph Co. v. Call Publishing Co., 181 U.S. 92, 98

(1901), which, although pre-Erie, used Erie-consistent analysis

regarding the role of state-court developed common law even as

to interstate commercial transactions.

(Mich. 1860); Sandford v. Railroad Co., 24 Pa. 378, 383

(Pa. 1855), cited by Indian River Steam-Boat Co. v. East

Coast Transp. Co., 28 Fla. 387, 410 (Fla. 1891); Sims v.

State, 1921 OK 68, P5 (Okla. 1921).

2. Holding Out

“Holding out” means expressing an offer to indifferently serve on uniform terms and conditions. See,

e.g., NARUC I, supra, 525 F.2d at 640-42 (collecting

cases)5; NARUC II, supra, 533 F.2d at 608.6 This is distinguished from private carriers that retain unilateral

discretion to exclude applicants and will serve only

under an individually-negotiated “special contract.”

NARUC I, 525 F.2d at 641.

Holding out does not turn on whether the firm purported to reserve some kind of editorial discretion.

Holding out means offering to serve all comers on

NARUC I and II did not make common law; they looked to

common law principles developed by the states to interpret an

“indefinite” and “circular” definition in the federal Communications Act. NARUC I, 525 F.2d at 640; NARUC II, 533 F.2d at

608.

An entity can use the same infrastructure to provide both

common carrier and private carrier services. NARUC II, 533 F.2d

at 608. A good example in the federal Communications Act is that

mobile telephony providers are common carriers for their interconnected mobile voice operations but private carriers for their

“data” service operations. See 47 U.S.C. § 332(c)(1)(A). So, a platform may have common carrier operations (hosting) and non-common carrier operations (newsfeeds). The platform may have a

two-sided market (end users on one side and advertisers on the

other) with only one side being common carrier.

uniform terms. The question then becomes whether a

state can prohibit a future discrimination by a firm

that held out in the past but with a claimed right to

discriminate. Common carriers originally reserved the

right to and did exclude African-American customers,

but that practice was properly held unlawful and ineffective.

The test is objective; a label assigned by the carrier, a legislature or party is not determinative. “ . . .

subjective intentions . . . are not controlling. It is the

objective conduct . . . What is crucial is that the common carrier defines itself through its own marketing

efforts as being willing to carry any member of that

segment of the public which it serves.” Woolsey v. National Transp. Safety Bd., 993 F.2d 516, 524-25 (5th Cir.

1993).

3. A Common Carrier Holds Out To Indifferently Serve

The social media platforms do hold out to indifferently serve: they do not negotiate individual contracts

and do not make “individualized decisions in particular cases whether and on what terms to deal.” NARUC

I, 525 F.2d at 641; NARUC II, 525 F.2d at 641. The “indifferently” part of the test is about the “who” the carrier will serve, not whether it reserves some claimed

right to discriminate on the “what” it will handle, especially after the contract is formed. Woolsey, 993 F.3d

at 524; Gray v. Western Union Tel. Co., 87 Ga. 350, 352

(Ga. 1891).

The Platforms hold themselves out to serve all

members of the public without individualized bargaining: they are willing to accept any user that agrees to

their non-negotiable terms of service. 22-255 J.A.217a218a. Any person can open an account immediately

upon acceptance of those terms. 22-255 J.A.70a; 22-277

J.A. 72, 131, 151. They do not negotiate special contracts with mass-market customers. This is common

carriage, not private carriage.

The “editorial discretion” asserted here is euphemism for discriminatory action against otherwise lawful user speech. The platforms and their Amici imagine

a range of perceived negative consequences if platforms cannot “curate,”7 but the Texas legislature made

a policy decision that, allowing untrammeled private

censorship based on non-negotiable but unclear and

subjective standards that are arbitrarily applied in

practice was worse. This legislative policy-based balancing deserves deference.

4. Common Carriers Cannot Unreasonably Discriminate

Common carriers cannot engage in unreasonable

discrimination regarding access to or post-contract

provision of their service, or have unjust terms, conditions or prices. Chevallier v. Straham, 2 Tex. 115, 11621 (Tex. 1847); Johnson v. Pensacola & P. R. Co., 16 Fla.

623, 664 (Fla. 1878). Access, terms and prices do not

Texas HB20 would allow removal of many of the posts they

describe. The remainder depend on one’s policy perspective.

have to be exactly the same. Only unjust or unreasonable discrimination is unlawful. Houston & T. C. R. Co.

v. Rust & Dinkins, 58 Tex. 98, 108-10 (Tex. 1882). The

two legislatures determined that viewpoint discrimination is unjust, unreasonable and unreasonably discriminatory. This is permissible common carrier

regulation.

5. Common Carriers Cannot Reserve The

Right To Discriminate, Especially If It

Hinders Competition

As Semon v. Royal Indemnity Co., 279 F.2d 737,

739-40 (5th Cir. 1960) (collecting cases, including those

in Alabama, the forum state) notes, it is the holding out

to accept all comers on equal terms and not what happens in each post-contract transaction that is determinative on the question of common or private carrier.

“We agree with the Insured that when a person holds

himself out to carry all—whether everyone or persons

or property of a particular identifiable category—reservations, secret or disclosed, or a refusal to serve is of

no consequence. The common carrier’s duty to serve all

indifferently cannot be lessened by a violation of that

duty.” 279 F.2d at 740. The boat captain in Semon never

held out and was therefore a private carrier. Had the

captain held out, the consequence of common carrier

status could not be vitiated by a claimed right to later

discriminate in derogation of that status. See also

Woolsey, 993 F.3d at 524; Gray v. Western Union, 87 Ga.

350, 352 (Ga. 1891). Once the agreement is formed, the

common carrier cannot unreasonably discriminate on

a transaction-by-transaction basis even if it expresses

a reserved right to do so.

The caselaw also reveals a special concern when a

common carrier discriminates between two customers

that are in competition by advantaging one and disadvantaging the other. Indian River, supra was one such

case in Florida, and it cited to precedent from other jurisdictions. In each, the common carrier gave special

treatment to one customer and less favorable treatment (or completely refused service) to a competitor of

the first, thereby putting the latter at a competitive

disadvantage. 28 Fla. at 435-37. If the facility is “public” (common carrier), however, it cannot be used to create a “hindrance of competition.” West Coat Naval

Stores Co. v. Louisville & N. R. Co., 121 F. 645, 650 (5th

Cir. 1903).

The Fifth Circuit referenced an Amicus submission relating to digital outlets’ business requirement to

have a presence on social media platforms, and their

reliance on monetization through the platforms to disseminate their own speech. 49 F.4th at 483, n. 35 referencing Babylon Bee Merits Amicus at 4.8 That filing

recited a long list of examples where platforms took

arbitrary and discriminatory adverse action against

the Babylon Bee and its sister non-parody site Not the

Bee. Id. at pp. 22-27, 35-36. These actions had a competitive impact because the platforms did not subject

Undersigned counsel represented the Bee entities at the

Texas District Court and Fifth Circuit.

other competing sites (such as Slate) to the same

standards.

Amicus The Texan is an online news publisher

with an online presence (https://thetexan.news) that

also relies on social media platforms to distribute its

printed, audio and video articles.9 Some platforms

have flagged The Texan’s content as “political” and this

has impeded The Texan’s ability to reach a wider audience. Content has also been rejected without sufficient

explanation and often it is not possible to reach customer service or otherwise determine what the problem is or how to solve it. Texas HB20 does not single

out newspapers for special treatment, but the bill

would still protect The Texan from platform action

with competitive implications, such as favoring other,

preferred news sites that lean in a particular direction

or support certain narratives. It would also require

better explanations and an internal dispute resolution

process.

6. Texas And Florida Still Consider The

Public’s Interest

The public’s interest is still a factor under Texas

and Florida common law as declared by those states’

two highest courts, despite criticism over several

See The Texan, Facebook (Jan. 19, 2024), https://www.

facebook.com/thetexanmedia/?checkpoint_src=any; The Texan,

Twitter (Jan. 19, 2024), https://twitter.com/thetexannews; The

Texan, Instagram (Jan. 19, 2024), https://www.instagram.com/

thetexannews/.

decades. See Texarkana v. Wiggins, 151 Tex. 100, 104

(Tex. 1952); Denton v. Denton Home Ice Co., 18 S.W.2d

606, 609 (Tex. 1929); Southern Bell Tel. & Tel. Co. v.

Nineteen Hundred One Collins Corp., 83 So. 2d 865,

871 (Fla. 1955); Miami Laundry Co. v. Florida Dry

Cleaning & Laundry Bd., 134 Fla. 1, 10 (Fla. 1938).

Neither state supreme court has expressly eliminated

this factor.

Market power may or may not be a component of

the test depending on the jurisdiction. Neither Texas

nor Florida common law hinges common carrier status

on market power.10 For these states market power or

control of an important public resource can be a strong

indication the public’s interest requires some form of

regulation. Stated another way, in Texas and Florida

market power is not determinative but can be an important input into whether the public’s interest justifies regulation above that generally applicable to all

businesses.

C. The Two States Did Not Impose Common

Carrier Status; They Merely Recognized

The Platforms For What They Already

Are

The Texas and Florida bills do not involuntarily

force any firm to assume common carriage status. They

Opinions differ on whether market power is necessary for

federal Communications Act purposes. United States Telecom

Ass’n v. FCC, 855 F.3d 381, 426-435 (D.C. Cir. 2017) (Kavanaugh,

J., dissenting on denial of reh’ng en banc).

merely recognize a status the platforms already possess. United States v. California, 297 U.S. 175, 181

(1936); Lone Star Steel Co. v. McGee, 380 F.2d 640, 648

(5th Cir. 1967) (“A particular system is a common carrier by virtue of its functions, rather than because it is

declared to be so”). These firms are not common carriers because of legislative conscription; the platforms

voluntarily assumed the role. The two states merely so

recognized and proceeded to implement a common carrier-based nondiscrimination requirement.

D. Neutral State Law Nondiscrimination

Obligations Do Not Violate Platforms’

First Amendment Rights

If state common law in Texas and Florida, as established by their courts, conflicts with the Bill of

Rights, the Constitution wins. Here, however, there is

no conflict. States have the authority to prohibit viewpoint discrimination by common carriers, provided the

limitations are content and viewpoint neutral. In

terms of hosting, the states’ legal precedent reduces

the platforms’ rights to censor user-generated content.

This is because a platform, like a telephone company

facilitating a conversation, is not the speaker when it

hosts user content.11

This Court recognized that a state can impose regulations

restricting common carriers’ editorial discretion. Manhattan

Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1932 (2019).

Once common carriage is present, non-censorship

and other nondiscrimination obligations necessarily

follow. Ark. Educ. TV Comm’n v. Forbes, 523 U.S. 666,

687 (1998), citing Columbia Broadcasting System, Inc.

v. Democratic Nat’l Committee, 412 U.S. 94, 101, 10709 (1973) and Red Lion Broadcasting Co. v. FCC, 395

U.S. 367, 388 (1969), noted that unlike broadcast licensees, a common carrier must accommodate “the right

of every individual to speak, write, or publish” (internal quotations cleaned up). This is not a violation of the

common carrier’s First Amendment rights because the

common carrier is not the speaker and has no First

Amendment right to censor or moderate lawful usersupplied speech; to the contrary it has an enforceable

duty to not discriminate or censor lawful speech and

an even higher obligation if the action affects competitors that are in the customer base.

Common carriers do retain First Amendment

rights as to their own speech. The hosting function,

however, does not involve platform speech or any

platform-expressive activity. Texas HB20 Section 7 silences no one and it does not compel anyone—including the platforms—to speak. The parts of Florida

SB7072 that are content-neutral operate in similar

fashion. These state bills do not violate the First

Amendment insofar as they impose a content-neutral

nondiscrimination mandate.

II.

HB20 Section 2’s Disclosure, Complaint,

And Appeal Requirements Do Not Unduly

Burden The Platforms.

Texas HB20 Section 2 is constitutional.12 Texas

HB20 Section 2’s (“Section 2”) disclosure, complaint,

and appeal requirements align with constitutional

principles, enhancing transparency and user rights on

digital platforms. Section 2 mandates content action

disclosures, ensuring users’ informed engagement and

protecting platforms from undue governmental pressure.13 This approach parallels global digital governance standards, as seen in the EU’s Digital Services

Act, showcasing alignment with international best

practices in platform regulation. By requiring clear

content management disclosures and efficient user appeal mechanisms, Section 2 balances the need for platform accountability with the constitutional imperative

to protect free speech. Thus, Section 2 represents a constitutionally-aligned framework, essential for maintaining an open, fair digital public square.14 Section 2

compliance by platforms would demonstrate a commitment to innovation, user engagement, and free speech,

Amici herein take no position on the Florida legislation as

to its individualized-explanation requirements.

See Br. of Amici Curiae Prof. Philip Hamburger et al. in

Support of Resp’t’s Opp’n to Appl. to Vacate Stay at 19-20,

Netchoice, LLC v. Paxton, No. 21A720, U.S. (2022).

See Br. of Amici Curiae Babylon Bee, LLC et al. in Opp’n

to Pl.’s Mot. for Prelim. Inj. at 19-20, Netchoice, LLC v. Paxton,

No. 1:21-cv-00840-RP (W.D.Tex. 2021).

reflecting a content-neutral stance in safeguarding

consumer welfare.

A. Large Social Media Firms Already Voluntarily Comply with the European

Union’s Digital Services Act and Other

Individualized Notice Principles

Covered social media platforms, operating globally, tailor their content moderation, appeals, and review policies according to local jurisdictions. Their

presence in various markets signifies the economic

benefit they gain from adapting to these different locations. The argument that Section 2’s disclosure, notice,

and appeal provisions will excessively burden platforms is unfounded. Platforms already comply with

similar requirements under the EU’s Digital Services

Act, Regulation (EU) 2022/2065 (“DSA”),15 so they

could manage what Section 2 requires by using the

same or only slightly modified tools.

The EU’s DSA and Section 2 have slightly different size thresholds16 and different geographic scope

but they converge in principle and practice for how

they deal with content moderation, transparency, and

user rights. Both require that large digital platforms

Regulation (EU) 2022/2065, Digital Services Act, O.J.

(2022) L277/1 et seq.

The DSA applies to platforms with over 45 million users,

whereas HB20 covers those with over 50 million users. See id. at

art. 33, para. 1. See also Shaping Europe’s Digital Future, EUROPEAN COMMISSION, https://digital-strategy.ec.europa.eu/en/policies/

digital-services-act-package (accessed Jan. 16, 2024).

disclose their content moderation policies and algorithmic effects.

The DSA requires that Very Large Online Platforms (“VLOPs”) provide “clear and specific statements” for the reasons content is removed or restricted,

information on the type of restriction(s) imposed, on

the territorial scope, and the duration of the restriction.17 The DSA mandates annual independent audits to ensure compliance, and even goes as far as

levying fines of up to 6% of global revenue for non-compliance.18 Yet, the DSA has led to innovation, manifesting tangible benefits for EU users. Meta and TikTok

now offer a non-customized feed option, and Facebook

and Instagram provide chronological content viewing.19

The DSA requires that VLOPs:

•

Specify the nature of any restrictions imposed, such as visibility limitations (i.e., content removal), monetary restrictions, service

provision limitations, or account suspensions.20

DSA Transparency Database: Submission of Clear and

Specific Statements, EUROPEAN COMMISSION, https://transparency.

dsa.ec.europa.eu/page/documentation.#submission-of-clear-andspecific-statements (accessed Jan. 17, 2024).

Velazco, E.U.’s Sweeping Rules for Big Tech, WASHINGTON

POST (Aug. 30, 2023) (login required).

Id.

DSA Transparency Database: Submission of Clear and

Specific Statements, EUROPEAN COMMISSION, https://transparency.

dsa.ec.europa.eu/page/documentation.#submission-of-clear-andspecific-statements (accessed Jan. 17, 2024).

•

Identify the type of content restricted (i.e.,

text or video), its creation date, and language.21

•

Clearly state the duration and geographical

scope of these restrictions.

•

Explain the reasons behind moderation decisions, including the source of content investigations.22

•

Indicate whether automated tools were used

in their decision-making process.

•

Clearly state the grounds for the content removal, including whether they were based on

legal reasons or terms of use or acceptable use

violations.

•

In cases of legal violations, cite specific laws.23

•

For terms of service or acceptable use policy

breaches, state the relevant contractual

grounds must be clearly referenced.24

•

Provide a complaint mechanism for users to

appeal content moderation as well as account

suspension (or limitations) decisions.25

Id.

Questions and Answers: Digital Services Act, EUROPEAN

COMMISSION, https://ec.europa.eu/commission/presscorner/detail/

en/QANDA_20_2348 (accessed Jan. 18, 2024).

Section 2 requires that Social Media Platforms:

•

Content selection and personalization. Publicly disclose how platforms select and personalize content for each user; the methods and

criteria for promotions; guidelines and procedures for reviewing, approving, promoting,

demoting, and removing content, suspending

users, and detailing how their use of algorithms impacts user-generated content an account suspensions on the platform in an

“acceptable use policy.” TCPRC §§ 120.051-52;

•

Biannual Transparency Reports. Publish

transparency reports every 6 months that include high-level statistics on content moderation, namely the number of policy-violation

alerts received; alert methods; frequency of

actions against such content or users; and

outcomes of appeals on these actions. Id.

§ 120.053.

•

Complaint and Appeal System. Maintain a

complaint and appeal system that provides

clear reasons for user-generated content removal and account suspension; allow user

appeals and respond to them within 14 days.

Id. §§ 120.051-52.

Many platforms that have headquarters in the

USA made the strategic corporate decision to voluntarily adapt their operations to meet the DSA by developing and implementing tools. Those same tools can be

used to comply with Section 2 obligations.

Many of the covered platforms under the DSA and

HB20 also support the “Santa Clara Principles on

Transparency and Accountability In Content Moderation” (“The Santa Clara Principles”).26 The Santa

Clara Principles, like Section 2, establish openness,

due process, cultural competency, and human rights requirements that Internet platforms should follow in order to offer significant, public-facing transparency

surrounding their moderation of all user-generated

material, whether paid or unpaid.27 The United Nations Educational, Scientific and Cultural Organization (“UNESCO”) has also established standards on

transparency in content moderation that have been

endorsed by many platforms.28 Perhaps more tellingly,

the U.S. is a signatory to Covenant on Civil and Political Rights (“ICCPR”) since 1977, and ratified it in June

1992. While the ICCPR does not directly govern the actions of private parties, it does require that state parties ensure that speech rights are protected against

abuse by private actors, such as large social media

platforms and VLOPs. The ICCPR requires that

speech restrictions—whether by the state or powerful

private speech regulators—be imposed in a manner

The Santa Clara Principles on Transparency and Accountability in Content Moderation, https://santaclaraprinciples.org/

(accessed Jan. 17, 2024).

Id.

Letting the Sun Shine In: Transparency and Accountability

in the Digital Age at 1, UNESCO, 2021, https://unesdoc.unesco.org/

ark:/48223/pf0000377231 (accessed Jan. 17, 2024).

that is clear, transparent, not-arbitrary, and that provides adequate notice to the specific users.29

B. HB20 Section 2’s Disclosure, Complaint,

and Appeal Requirements Benefit the

Platforms and Encourage User Confidence in Platform Integrity

Section 2 does not on its own prohibit content moderation. Nor does it require all platforms to adopt the

same policies. Instead, it can provide a critical point of

competitive distinction as each platform tailors its offerings to the needs of their respective users.30 Section

2 mandates transparency so both users and social media platforms better understand how content moderation decisions get made. Consumers can make an

informed choice about which platform they wish to

use.31 This will mean fewer surprises and enhance content moderation economies of scale because moderation decisions will be transparent to users on the front

end. Fewer users will be confounded when posts or

See International Covenant on Civil and Political Rights,

art. 19, Dec. 16, 1996, 999 U.N.T.S. 171, https://www.ohchr.org/

en/instruments-mechanisms/instruments/international-covenantcivil-and-political-rights#article-19 (accessed Jan. 17, 2024).

Br. for Babylon Bee, LLC et al. as Amici Curiae Supporting

Def.-Appellant Paxton at 20, NetChoice, LLC v. Paxton, No. 2151178, 49 F.4th 439 (5th Cir. 2022).

See Matt Perault, Section 230 Reform: A Typology of Platform Power, CPI ANTITRUST CHRON., May 2021, at 18 (“Different

approaches to content moderation enable users to make choices

based on their moderation preferences”).

user accounts are stricken, downgraded, or terminated

from the platform.

Transparency requirements limit the backlash social media firms often face after they take some action.32 Transparency quells disputes before they occur

by requiring clear enunciations of what is and what is

not an acceptable use of the platform. This will, in turn,

stimulate competition between different social media

firms with diverse audiences and varying terms of

use.33 Section 2 mandates clear disclosure and appeals

processes, enabling informed user choices and reducing misunderstandings about content decisions.

Section 2 also protects both the public and social

media platforms from improper governmental pressure to circumvent the First Amendment.34 Requiring

screening and removal consistency gives social media

platforms a basis to refuse governmental demands to

target viewpoints and messages that the government

disfavors.

Social media platforms, with their capacity for innovation and significant technological resources, can

adapt to an increased number of user appeals without

compromising safety functions. The challenge of handling more appeals could drive advancements in automated moderation technologies, leveraging AI for

Babylon Bee Br. at 44.

Id. at 45.

Br. for Babylon Bee, LLC et al. as Amici Curiae in Support

of Appellant’s Mot. To Stay Prelim. Inj. Pending Appeal at 15,

Netchoice, LLC v. Paxton, No. 21-51178 (5th Cir. 2021).

efficient and accurate processing. These platforms, designed for scalability, can manage the costs associated

with additional appeals without diverting funds from

critical areas, as they typically possess diverse revenue

streams and sizeable budgets.

An efficient appeals process could lead to greater

user engagement and higher revenue. Improved moderation processes driven by a surge in appeals could

lead to fewer errors and a subsequent reduction in appeals, offering valuable insights for refining policies

and enforcement mechanisms. Additionally, implementation of Section 2 may encourage users to follow platforms’ terms more closely, thereby reducing violations

and enhancing overall platform integrity. Above all—

and despite the political theater—Section 2 is a concerted and content-neutral effort to protect consumer

welfare.35

HB 20 Section 2’s disclosure, complaint, and appeals requirements do not violate the First Amendment.

---------------------------------♦---------------------------------

CONCLUSION

The Court should affirm the Fifth Circuit judgment

as to all issues sub judice and reverse the Eleventh

See generally Robert Bork, The Anti-Trust Paradox (Bork

Publishing 2021).

Circuit judgment relating to Florida’s neutrality and

hosting provisions.

Dated: January 23, 2024

Respectfully submitted,

EVAN M. GOLDBERG

W. SCOTT MCCOLLOUGH

Counsel of Record

MCCOLLOUGH LAW FIRM, P.C.

2290 Gatlin Creek Road

EVAN MILES GOLDBERG, PLLC

Dripping Springs, TX 78620 400 East 57th Street, Ste. 4M

New York, NY 10022

Tel: (212) 888-6497

egoldberg@emglawfirm.com

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.