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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No. 22-277

In The

Supreme Court of the United States

ASHLEY MOODY, Attorney General

of Florida, et al.,

Petitioners,

NETCHOICE, LLC, dba Netchoice, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

For the Eleventh Circuit

BRIEF FOR DONALD J. TRUMP

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JOHN P. COALE

Counsel of Record

2901 Fessenden St. NW

Washington, D.C. 20008

johnpcoale@aol.com

(202) 255-2096

RICHARD POLK LAWSON

JESSICA HART STEINMANN

PATRICIA NATION

JASE PANEBIANCO

AMERICA FIRST

POLICY INSTITUTE

1001 Pennsylvania Ave. NW

Suite 530

Washington D.C. 20004

Counsel for Amicus Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTION PRESENTED

Whether a Florida statute requiring social

media platforms to apply their “censorship,

deplatforming, and shadow banning standards in a

consistent manner” (Fla. Stat. § 501.2041(2)(b))

complies with the First Amendment.

TABLE OF CONTENTS

Question Presented ..................................................... i

Table of Authorities .................................................. iii

Interests of Amicus Curiae .........................................1

Summary of the Argument .........................................3

Argument.....................................................................7

Introduction .................................................................7

Judicial Application of Common Carrier

Doctrines to Railroads ..............................................13

Social Media’s Indebtedness to Special

Privileges is no Less Than the Railroads’ ................21

Common Carrier Principles Apply to

Telecommunications .................................................25

The First Amendment is not Carte Blanche

to Break Contracts ....................................................30

Conclusion .................................................................33

TABLE OF AUTHORITIES

Cases

Biden v. Knight First Amend. Inst.,

141 S. Ct. 1220 (2021) ...............................................11

Conservation Force v. Delta Air Lines, Inc.,

190 F. Supp. 3d 606 (N.D. Tex. 2016) ............... 29−30

Dinsmore v. The Louisville, Cincinnati & Lexington

Ry.,

2 F. 465 (Cir. Ct., D. Ky. 1880) .................................19

E-Ventures Worldwide, LLC v. Google, Inc.,

2017 WL 2210029 (M.D. FL 2017) ...........................28

Enigma Software Group USA, LLC v. Malwarebytes,

Inc.,

946 F.3d 1040 (9th Cir. 2019) ............................ 27−28

FTC v. Verity Int’l, Ltd.,

443 F.3d 48 (2d Cir. 2006) ........................................25

Hurley v. Irish American Gay, Lesbian & Bisexual

Group of Boston,

515 U.S. 557 (1995) ...................................................31

Inhabitants of Worcester v. Western R. Corp.,

4 Metc. (Mass.) 564 (1842) ..........................................6

Johnson v. Pensacola & P.R. Co.,

16 Fla. 623 (1878) ......................................................18

Kansas Pac. Ry. Co. v. Nichols, Kennedy & Co.,

iii

9 Kan 235 (KS 1872) .......................................... 17−18

McCory v. Cincinnati, Indianapolis, St. Louis &

Chicago R.R.,

13 F. 3 (Cir. Ct., S.D. Ohio 1882) ..............................19

Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974) .............................................11, 32

Missouri Pacific Railroad Co. v. Larabee Flour Mills Co.,

211 U.S. 612 (1909) ...................................................29

Munn v. Illinois,

94 U.S. 113 (1877) ........................................ 13, 18−19

NetChoice, LLC v. AG, Florida,

34 F.4th 1196 (11th Cir. 2022) ............ 7, 9, 11, 12, 23,

26−28, 30−32

NetChoice, LLC v. Paxton,

49 F.4th 439 (5th Cir. 2022)................. 2, 4, 7, 8, 10, 13

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ...................................................24

O’Brien v. Western Union Tel. Co.,

113 F.2d 539 (1st Cir. 1940) .....................................29

Pacific Gas & Electric Co. v. Public Utilities

Commission of California,

475 U.S. 1 (1986) .......................................................32

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) ...............................................11

Palin v. N.Y. Times Co.,

2022 WL 599271 (S.D. NY 2022) ..............................24

Palmer v. Thorpe,

4 Coke’s Reporter 20a (1583) ....................................21

Plessy v. Ferguson,

163 U.S. 537 (1896) ...............................................6, 20

Reno v. American Civil Liberties Union,

521 U.S. 844 (1997) ...................................................28

Sandmann v. WP Company, LLC,

401 F. Supp. 3d 781 (E.D. KY 2019) .........................24

Southern Express Co. v. Memphis, Etc., R.R,,

8 F. 799 (Cir. Ct., E.D. Ark. 1881) ............................19

Taylor v. Philadelphia & Reading R.R.,

7 F. 386 (Cir. Ct., E.D. Pa. 1881) ..............................19

Trump et al. v. Meta Platforms, Inc., et al.,

21-cv-9044 (CA N.D.) ..................................................1

Trump et al. v. Twitter, Inc., et al.,

21-cv-8378 (CA N.D.) ..................................................1

Trump et al. v. YouTube, LLC, et al.,

21-cv-9008 (CA N.D.) ..................................................1

Turner Broadcasting Systems, Inc. v. FCC,

512 U.S. 622 (1994) ...................................................32

U.S. Telecom Ass’n v. FCC,

825 F.3d 674 (D.C. Cir. 2016) ...................................26

Zauderer v. Office of Disciplinary Counsel of the

Supreme Court of Ohio,

471 U.S. 626 (1985) ...................................................31

Constitutional Provisions and Statutes

U.S. Const. First Amendment ....... 1−4, 10, 12, 30−33

Fla. Stat. § 501.2041(2)(b) .......1−4, 6, 7, 9, 10, 12, 13,

25, 28, 30−33

Fla. Stat. § 501.2041 et seq. (2022) ............................1

47 U.S.C. § 223(e)(6) .................................................26

47 U.S.C. § 230 ......................... 3−6, 10, 12, 21−28, 33

47 U.S.C. § 230(a)(3) ...................................................5

47 U.S.C. § 230(a)(5) .................................................23

47 U.S.C. § 230(b)(1) .................................................23

47 U.S.C. § 230(c)(1) ..............................................4, 10

47 U.S.C § 230(c)(2)(A) ..............................................27

47 U.S.C. § 230(f)(3) ..............................................4, 10

47 U.S.C. § 414 ..........................................................26

Other Authorities

Alina Selyukh, Section 230: A Key Legal Shield for

Facebook, Google is About to Change, National Public

Radio (March 21, 2018) ...............................................5

Alphabet Inc., Annual Report (Form 10-K) (Feb. 16,

2022) ..........................................................................23

Andrew Sullivan, When Racism is Fit to Print, New

York Magazine, Aug. 3, 2018 ......................................8

1 Bruce Wyman, The Special Law Governing Public

Service Corporations, and All Others Engaged in

Public Employment § 633 (1911) ..............................29

Victor Monroe, Candace Owens mimics Sarah Jeong,

gets suspended by Twitter, The Washington Times

(Aug. 5, 2018) ..............................................................9

Economic Value of Internet Intermediaries and the

Role of Liability Protections, NERA, June 5, 2017 ..23

Encyclopedia Britannica, The Annals of America,

(1976) .................................................................. 15−16

Eugene Volokh, Treating Social Media Platforms Like

Common Carriers?, 1 J. Free Speech L. 377 (2021) ...22

H.G. Wells, A Short History of the World, The

MacMillan & Company, New York (1922) ........ 16−17

Ida M. Tarbell, The History of the Standard Oil

Company, New York (1904) ............................... 19−20

vii

Julius Caesar, The Gallic War, Harvard University

Press (2023) ...............................................................14

Kate Conger, et al., Zuckerberg and Dorsey Face

Harsh Questioning from Lawmakers, New York

Times, November 17, 2020 .......................................22

Mason Walker, U.S. Newsroom Employment has

Fallen 26% since 2008, Pew Research Center (July 13,

2021) ..........................................................................25

Meta Platforms, Inc., Annual Report (Form 10-K)

(Feb. 2, 2022) .............................................................23

News Platform Fact Sheet, Pew Research Center,

November (2023) .......................................................24

Restatement (Second) of Torts § 581 (1977) ............29

Restatement (Second) of Torts § 612 (1977) ............29

Richard White, The Republic for Which It Stands,

Oxford (2019) .............................................................16

Statement of Mark Zuckerberg, CEO of Facebook,

Inc., Does Section 230's Sweeping Immunity Enable

Big Tech Bad Behavior? Hearing Before the S. Comm.

on Com., Sci., & Transp., 116th Cong. (2020) ..........21

Twitter, Inc., Annual Report (Form 10-K) (Feb. 16,

2022) ..........................................................................23

Twitter, Hateful Conduct, Twitter Terms of Service

(April 2023)..................................................................8

viii

United States Senate Committee on Commerce,

Science, and Transportation, October 28, 2020 .......22

4 William Blackstone, Commentaries ......................22

Yale Law School, The Avalon Project .......................21

INTERESTS OF AMICUS CURIAE1

Amicus Donald J. Trump, 45th President of the

United States, is the lead plaintiff in class action

lawsuits filed against Twitter, Inc.,2 Meta Platforms,

Inc.,3 and YouTube, LLC.4 Among the causes of

action5 alleged in these cases is a violation of Ch.

2021-32, Laws of Florida (S.B. 7072). 6 Specifically,

Amicus Trump has asserted that these social media

platforms violated S.B. 7072, codified at Fla. Stat. §

501.2041(2)(b) (“Section (2)(b)” or “(2)(b)”)7 by failing

No parties other than the Amicus and his counsel have

provided funds for this brief; no counsel for any party to this

action have authored any portion of this brief.

Trump et al. v. Twitter, Inc., et al., 21-cv-8378 (CA N.D.)

(currently before the Ninth Circuit Court of Appeals, Donald

Trump, et al. v. Twitter Inc., et al., case no. 22-15961; oral

argument has been concluded in the appeal but no decision has

been issued).

Trump et al. v. Meta Platforms, Inc., et al., 21-cv-9044 (CA

N.D.)

Trump et al. v. YouTube, LLC, et al., 21-cv-9008 (CA N.D.)

5 In addition to the S.B. 7072 causes of action, there are claims

under the First Amendment, the Florida Deceptive and Unfair

Trade Practices Act, Fla. Stat. § 501.201 et seq., and an action to

determine the constitutionality of Section 230.

6 Fla. Stat. § 501.2041

et seq. (2022)

7 Section (2)(b) reads as follows: “A social media platform must

apply censorship, deplatforming, and shadow banning standards

in a consistent manner among its users on the platform.”

consistently

apply

their

censorship,8

deplatforming, and shadow banning standards10

(together, “Censorship Standards”).

The Eleventh Circuit in NetChoice, LLC v. AG,

Florida, 34 F.4th 1196 (11th Cir. 2022) (“Moody”) held

that Section (2)(b)’s consistency provision likely

violated the First Amendment by impairing the

platforms’ free speech interests.

In a parallel

development a few months later, the Fifth Circuit

Court of Appeals in NetChoice, LLC v. Paxton, 49

F.4th 439 (5th Cir. 2022) (“Paxton”), upheld a Texas

law (“H.B. 20”), which also affected the operations of

social media platforms.

This Court accepted review of the Moody and

Paxton but limited the scope to the first and second

questions presented by the Solicitor General’s amicus

curiae brief.

Amicus Trump’s brief is limited

exclusively to the Solicitor General’s first question,

the First Amendment implications of S.B. 7072’s

content moderation provisions. Further, this amicus

brief is limited to the discrete question of the validity

of Section (2)(b)’s consistency provision. As Section 6

8 Florida Statutes § 501.2041(1)(b) defines “Censor” to include a

social media platform deleting, regulating, or restricting content

posted by a user.

Florida Statutes § 501.2041(1)(b) defines “Deplatform” to

include an act by a social media platform to permanently or

temporarily delete or ban a user for more than 14 days.”

Florida Statutes § 501.2041(1)(b) defines “Shadow ban” to

include an action by a social media platform to limit the exposure

of a user or content.

of S.B. 7072 contains a severability provision11, the

Court’s decision as to Section (2)(b) will neither affect

nor be affected by its decision on the balance of S.B.

7072. The same holds true for Texas’ H.B. 20 as it has

no directly comparable provision to Section (2)(b).

Amicus Trump respectfully submits that

Section (2)(b) is supported by long-standing commonlaw principles prohibiting unfair discrimination by

common carriers and, regardless of how the Court

may rule as to the other sections of S.B. 7072 or H.B.

20, the Court should uphold this consistency

provision.

SUMMARY OF THE ARGUMENT

A platform’s decision to discriminate against a

user unfairly is not protected by either the First

Amendment or Section 230 of the Communications

Decency Act (“Section 230”).12

The Eleventh Circuit erroneously concluded

that social media platforms “have a First Amendment

right to be ‘unfair’ – which is to say, a right to have

and express their own points of view.” Moody, 34

F.4th at 1228. The Eleventh Circuit’s error rests on a

11 S.B. 7072 Section 6 reads as follows: “If any provision of this

act or the application thereof to any person or circumstance is

held invalid, the invalidity shall not affect other provisions or

applications of the act which can be given effect without the

invalid provision or application, and to this end the provisions of

this act are declared severable.”

12 47 U.S.C. § 230 (“Section 230” or “§ 230”).

sweeping and incorrect conclusion that when

platforms deliver a user’s content, the platforms are

themselves engaged in speech rather than acting like

telephone or telegraph operators.

Contrariwise, Paxton correctly determined

that when platforms host and distribute content

protected by Section 230, the platforms are not

engaged in speech. Paxton, 49 F.4th at 448 (“Our

decision . . . is reinforced by 47 U.S.C. § 230, which

reflects Congress’s judgment that the Platforms are

not “speaking” when they host other people's

speech.”). Section 230 immunity only applies when

the content at issue is “provided by another

information content provider.” 47 U.S.C. § 230(c)(1)

(emphasis added). Section 230 defines “information

content provider” as a party “responsible, in whole or

in part, for the creation or development of

information.” 47 U.S.C. § 230(f)(3). Put simply, a

party engaged in speech is an “information content

provider” and is, per se, unprotected by Section 230.

Section (2)(b) requires platforms to apply their

Censorship Standards to user content in a way that is

consistent with their user agreements. Much of this

content is protected by Section 230 and not the

platform’s speech, but even if the consistent

application of Censorship Standards affected a

platform’s speech, there is no reading of the First

Amendment that grants an industry the unilateral

right to ignore the terms of their consumer contracts.

Moreover, Section (2)(b)’s consistency provision falls

within the long-standing prohibition against unfair

discrimination by common carriers.

Platforms hosting third-party content act like

airlines carrying passengers, telegraph companies

transmitting messages, or railroads carrying freight.

Like these traditional common carriers, the largest

platforms offer their services to one and all on a takeit-or-leave-it basis without any bespoke modification.

Like other carriers, platforms have full authority to

determine what and how they will carry content, but

once set, they must honor their statements.

Section 230 was enacted to promote more

content, not less; Congress created this immunity to

further “the policy of the United States” to “promote

the continued development of the internet . . . and

other interactive media.” 47 U.S.C. § 230(b)(1).

Section 230 was designed to promote a “forum

for a true diversity of political discourse . . .

opportunities for cultural development, and myriad

avenues for intellectual activity.”

47 U.S.C. §

230(a)(3).

The importance of Section 230 cannot be

overstated: without its immunity, social media would

not exist. Michael Beckerman, the former president

of the industry trade group the Internet Association,

stated that Section 230 is “the one line of federal code

that has created more economic value in this country

than any other.”13

13 Alina Selyukh, Section 230: A Key Legal Shield for Facebook,

Google is About to Change, National Public Radio (March 21,

2018).

Given the industry’s indebtedness to Section

230 and Congress’ rationale for immunity, when

platforms act under the special privilege of Section

230 immunity they are engaged in public work,

established by public authority, and intended for

public use and benefit. This is the very definition of a

common carrier. See, e.g., Plessy v. Ferguson, 163

U.S. 537, 553-54 (Harlan, J., dissenting) (“That a

railroad is a public highway, and that the corporation

which owns or operates it is in the exercise of public

functions, is not, at this day, to be disputed,” citing

Inhabitants of Worcester v. Western R. Corp., 4 Metc.

(Mass.) 564, “The establishment of that great

thoroughfare is regarded as a public work,

established by public authority, intended for the

public use and benefit, the use of which is secured to

the whole community, and constitutes, therefore, like

a canal, turnpike, or highway, a public easement.”).

The special privilege of Section 230 immunity

is much like the special privileges bestowed on

railroads in the 1800s through land grants and

eminent domain powers. Where the government

sought to further the 19th-century policy of

developing a transcontinental rail network, Section

230 furthers a 21st-century policy of developing a

digital network. Just as the grant of special privileges

to the railroads brought them within the ambit of the

common carrier obligations, so too has Section 230

brought the platforms within the realm of common

carrier responsibilities.

Foremost among these

obligations is a prohibition against unfair

discrimination. Viewed from its proper historical

setting, Section (2)(b)’s consistency provision is

nothing other than one of the law’s oldest forms of

consumer protection, updated for the digital age.

ARGUMENT

Introduction

The conflict between Moody and Paxton is a

result of their analyzing two separate and distinct

acts performed by platforms: hosting and curating, or

“feeding,” third-party content. As it focused on

platforms’ feeding functions, Moody overlooked the

platforms’ representations to their users and thereby

failed to recognize the basic consumer protection

function of Section (2)(b). Moody, 34 F.4th at 1216.

By contrast, Paxton studied the platforms’ hosting

functions and correctly concluded that such activity

is, per se, not speech and that H.B. 20 is a valid

consumer protection statute. Paxton, 49 F.4th at 461.

Adding to the confusion is the fact that each

act—hosting and feeding—is undertaken by the

platforms simultaneously. A typical platform will

“host” third-party content on a webpage specifically

devoted to that user’s content, and this content is

subject to minimal review by the platforms. Id. (“. . .

the Platforms permit any user who agrees to their

boilerplate terms of service to communicate on any

topic, at any time, and for any reason. And . . .

virtually none of this content is meaningfully

reviewed or edited in any way”). The volume of data

processed by platforms is almost incomprehensible:

every minute, 500 hours of video are uploaded to

YouTube, 510,000 comments are posted to Facebook,

and 347,000 tweets are posted on X (formerly

Twitter). Brief for Respondent State of Florida, p. 23.

These platforms then provide this content in a feed,

which is delivered or “fed” to other users on the

platform. Paxton, 49 F.4th at 460. Rejecting the

Eleventh Circuit’s analysis, Paxton held that a “social

media feed is ‘curated’ in the same sense that his mail

is curated because the postal service has . . .

[screened] out hazardous materials.” Paxton, 49

F.4th at 492.

To give an example of the inconsistent

application of Censorship Standards as well as

illustrate the difference between hosting and feeding

content, it is helpful to examine an episode from 2018

when the New York Times announced it hired

reporter Sarah Jeong. At the time, Twitter (now

known as X) stated that it is “. . . committed to

combating abuse motivated by hatred, prejudice or

intolerance.”14 Nevertheless, when Jeong was hired

by the Times, Ms. Jeong’s prior posts—still hosted by

Twitter—surfaced, including but not limited to the

following:

1. White men are bullshit;

2. [White people are] like dogs pissing

on fire hydrants; and

3. #CancelWhitePeople; and,

4. “Are white people genetically

disposed to burn faster in the sun,

thus logically being only fit to live

Twitter, Hateful Conduct, Twitter Terms of Service (April

2023),

https://help.twitter.com/en/rules-and-policies/hatefulconduct-policy

underground

goblins.”15

groveling

Twitter might have once fed those tweets to other

users, but when this attracted national attention, the

tweets were simply being hosted on the platform and

visible to users. In response to the news about Ms.

Jeong’s tweets, conservative commentator Candace

Owens, herself an African American woman,

attempted to highlight their provocative nature by

posting the following to her “hosted” profile on

Twitter:

“Jewish people are bull—t … like dogs

pissing

fire

hydrants

#cancelJewishpeople

Are

Jewish

people genetically predisposed to burn

faster in the sun? The above

statements are from @nytimes editor

@SarahJeong. I simply swapped out

the word ‘white’ for ‘Jewish.’”16

Unlike its continued hosting of Ms. Jeong’s tweets,

Twitter censored Ms. Owens for 12 hours in response

to her ostensible violation of Twitter’s policies

regarding hateful conduct.

The Jeong/Owens episode demonstrates the

consumer protection interest in the consistency

provision of Section (2)(b). Under Moody, The First

15 Andrew Sullivan, “When Racism is Fit to Print,”

Magazine, Aug. 3, 2018.

New York

https://www.washingtontimes.com/news/2018/aug/5/candaceowens-mimics-sarah-jeong-gets-suspended-tw/

Amendment would protect Twitter’s decision to

censor Owens’ tweets despite continuing to host

Jeong’s. Drawing on common-law traditions, Section

(2)(b) specifically addresses this type of unfair

discrimination. Housed within Florida Statutes

Chapter 501, Part II, prohibiting deceptive and unfair

trade practices, Section (2)(b) claims are not so much

based on a platform’s failure to honor its user

agreement as the fact that it deceived users as to the

platform’s policies.

Fundamentally, however, there is no plausible

reading of the First Amendment that would allow a

party, much less one acting under a special privilege

like Section 230 immunity, to unilaterally breach a

consumer contract by unfairly discriminating against

users through the biased application of its own

Censorship Standards.

A Platform’s Protected Speech is Unprotected by

Section 230

A platform’s speech is, by definition,

unprotected by Section 230. Section 230 states that

“No provider or user of an interactive computer

service shall be treated as the publisher or speaker of

any information provided by another information

content provider,” and an “information content

provider” is defined to include anyone who is

responsible, in whole or in part, for the creation or

development of information provided through the

internet. 47 U.S.C. §§ 230(c)(1), 230(f)(3). As noted in

Paxton, the industry has repeatedly asserted that

when hosting or feeding content, the platforms are

protected by Section 230:

Thus

the

Platforms,

unlike

newspapers, are primarily “conduit[s]

for news, comment, and advertising.”

Miami Herald, 418 U.S. at 258, 94 S.Ct.

2831. And that's why the Supreme

Court has described them as “the

modern public square.” Packingham,

137 S. Ct. at 1737; see also Biden v.

Knight First Amend. Inst., ––– U.S. ––

––, 141 S. Ct. 1220, 1224, 209 L.Ed.2d

519 (2021) (Thomas, J., concurring)

(noting Platforms are also “unlike

newspapers” in that they “hold

themselves out as organizations that

focus on distributing the speech of the

broader public”).

The Platforms’ own representations

confirm this. They’ve told their users:

“We try to explicitly view ourselves as

not editors.... We don’t want to have

editorial judgment over the content

that’s in your feed.” They’ve told the

public that they “may not monitor,” “do

not endorse,” and “cannot take

responsibility for” the content on their

Platforms. They've told Congress that

their “goal is to offer a platform for all

ideas.” And they’ve told courts—over

and over again—that they simply

“serv[e] as conduits for other parties’

speech.”

49 F.4th at 460. Even if the Moody court knows better

than the platforms as to when they are speaking,

Moody still erred by blessing their ability to deceive

consumers as to the platforms’ terms of service:

Even if a platform wants to retain or

remove content in an inconsistent

manner—for

instance,

steer

discourse in a particular direction—it

may not do so . . . These provisions

[Section (2)(b) and the 30 day notice

requirement] thus burden platforms’

right to make editorial judgments on a

case-by-case basis or to change the

types of content they'll disseminate—

and, hence, the messages they express.

Moody, 34 F.4th at 1222 (emphasis in original). That

the Moody court would even entertain the idea that

platforms can “remove content in an inconsistent

manner” (emphasis in original) demonstrates that it

gave no consideration at all to the platforms’

statements in their terms of service. The Moody court

ignored the fact that the consistency requirement is

not measured by a platform’s speech interests but by

the platforms’ own Censorship Standards set forth in

their own take-it-or-leave-it user agreements.

Rather than impeding a platform’s protected

speech interests, Section (2)(b) simply requires that

platforms honor their Censorship Standards. Not

only does the First Amendment not affect this

contractual obligation, to the degree a platform enjoys

Section 230 protection for this content, it is per se not

the platform’s protected speech.

Furthermore,

statutory prohibitions against unfair discrimination

have a long lineage in the law.

Common Carrier Principles Support Section (2)(b)

The Fifth Circuit succinctly detailed the

history of the common carrier obligation to treat all

users fairly. Paxton, 49 F.4th at 469-71. Originating

in the 1400s with an obligation that ferry operators

run their services for the “convenience of the common

people,” by the 1600s, the principle was extended to

private parties who owned the only wharf in a port.

Id. Such parties were deemed to be “affected with a

public interest” and thereby prohibited from

“arbitrary and excessive duties” for their services. Id.

These same principles were broadly applied by

courts and legislatures addressing the rapid

industrialization of the country in the years after the

Civil War. This Court cited the common-law tradition

in Munn v. Illinois when it upheld an Illinois statute

governing granary rates for storing farmers’ harvests;

noting the essential role of granaries, the Court held

they were common carriers who, “exercise a sort of

public office, and have duties to perform in which the

public is interested.” Munn v. Illinois, 94 U.S. 113,

126, 130 (1877).

Judicial Application of Common Carrier Doctrines to

Railroads

Nowhere was this Gilded Age reliance on

common-law common carrier principles greater than

when it came to litigation over railroad practices. The

railroads’ common carrier status did not come as a

result of a royal license like a ferry operator or an

economic chokehold like a wharf owner but as a

product of the special privileges bestowed by the

government to aid their construction.

Rather than a simple free market success

story, America’s rail network is the product of an

elaborate government program involving massive

land grants and the delegation of eminent domain

powers to private companies. The public did not grant

these special privileges simply to speed up an

inevitable private sector action but to serve a vital

interest: binding the Nation with a reliable and

speedy transcontinental communication network.

Much as Caesar once described Gaul,17 the

United States is naturally divided into three parts:

the east, with rivers draining from the Appalachians

to the Atlantic; the middle, whose rivers start in the

Appalachians and Rockies, flow into the Mississippi,

and empty into the Gulf of Mexico; and the west,

where the rivers head to the Pacific. In an era where

water was invariably the speediest form of

communication, there was no way to traverse the

continent without, at some point, having to

disembark and engage in slow and costly land travel.

Even assuming no regional antagonisms, the

logistical burden of governing a continent-wide nation

without the railroads would at the very least be

Herculean and, more likely, Sisyphean.

The idea that the railroad could solve this

communication problem with help from Congress had

been circulating since at least the 1840s. In 1845,

The Gallic War, “All Gaul is divided into three

parts . . .,” Loeb Classical Library, Harvard University Press,

2023, P. 1.

17 Julius Caesar,

businessman Asa Whitney proposed to Congress that

it grant him a stretch of public land sixty miles wide,

running from Lake Michigan to the Pacific; in return,

he would sell the land, using the funds to construct a

transcontinental railroad. The Annals of America,

Encyclopedia Britannica, 1976, Vol. 7, page 272. In

his proposal, he stated that he:

. . . can see no way or means by which

this great and important work can be

accomplished, for ages to come, except

by a grant of sufficient quantity of the

public domain; your memorialist

believes that from the proceeds of such

a grant he will be enabled to complete

said road within a reasonable period of

time . . . thus, in a comparatively short

space of time, accomplishing what will

otherwise require ages . . .

Id. at 273. If the means of construction rested with

the grant of public lands, the end of an integrated

nationwide transcontinental railroad was understood

by all parties as a national necessity. Whitney’s

appeal noted that “this road will unite them [the

Pacific territories] to us, enabling them to receive the

protecting care of our government.” Id. at 275. In an

anonymous article published in the Western Journal

in 1850, the author advocated for the use of public

land grants for a transcontinental railroad, warning

that without railroad lines of communication: “it will

become the interest, and may become the inclination

of the states and territories on the Pacific slope, to

form a separate government.” The Annals of America,

Encyclopedia Britannica, 1976, Vol. 8, page 71, 74.

While Congress agreed in 1853 that it should assist in

the construction of a transcontinental railroad, the

growing animosity of the Antebellum era precluded

agreement as to the route. The Annals of America,

Vol. 7 at 272.

Once concerns over disunion had passed from

theory to reality, Congress took action.

With

Southern opposition removed the debates over the

route were rendered moot, and in the summer of 1862

Congress enacted legislation adopting the use of land

grants to fund the construction of a transcontinental

railroad. In the decade running from 1862 to 1872,

Congress gave 131,230,358 acres to the railroads—if

its own state, it would be exceeded in size only by

Alaska and Texas. Richard White, The Republic for

Which It Stands, Oxford, 2019, pp. 117-119.

Additionally, the states gave 44,224,175 acres (about

the size of Missouri) to the railroads. Id. These

legislative gifts were not without their return: the

proceeds from the sale of these lands funded 29,589

miles of track between 1868 and 1873, with the

“Golden Spike” driven in at Promontory, Utah, in

1869. Id. p. 217. The long-term effect of this land

grant program cannot be overstated. Writing in the

1920s, H.G. Wells remarked that:

The growth of the United States is a

process that has no precedent in the

world’s history; it is a new kind of

occurrence. Such a community could

not have come into existence before,

and if it had, without railways it would

certainly have dropped to pieces long

before now . . . The United States is

being woven by railway, by telegraph,

more and more into one vast unity,

speaking,

thinking

and

acting

harmoniously with itself.

H.G. Wells, A Short History of the World, The

MacMillan & Company, New York, 1922, page 382.

This then was the context in which the courts

of the post-war era examined railroads: despite being

private enterprises, their construction was almost

entirely dependent on special privileges granted by

the public. When confronted with a railroad abusing

these special privileges, courts relied on the railroads’

indebtedness to the public to prohibit them from

engaging in unfair discrimination.

One of the earliest cases that recognized the

government’s unique role in the industry’s

development came from Kansas in 1872. Addressing

a railroad’s liability for a lost shipment of cattle, the

court noted that common carriers unequivocally faced

exposure for such losses. Kansas Pac. Ry. Co. v.

Nichols, Kennedy & Co., 9 Kan 235, 248 (KS 1872).

Turning then to the issue of whether railroads were,

in fact, common carriers, the court held that:

In Kansas they [railroads] are endowed

with a kind of quasi public as well as

private character. In Kansas they are

so far public that the sovereign power

of eminent domain may be exercised for

their benefit, and they are so far public,

that other public aid may be extended

to them. It is believed that no railroad

has yet been built in Kansas that has

not been aided both by the exercise of

the power of eminent domain, and by

other public aid, such as lands and

county or municipal bonds.

Id. at 250 (emphasis added). Six years later, the

Supreme Court of Florida similarly relied on the

public’s role in railroad construction to deem railroads

common carriers. Rather than lost cattle, Florida was

confronted with an allegation that a railroad had

engaged in unfair price discrimination against a

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

(1878).

Relying on Munn, the Florida court

acknowledged that common carriers are prohibited

from engaging in unfair price discrimination. Id. at

663 (“It cannot be questioned that the reason why a

common carrier is restricted to reasonable rates is the

same that causes the limitation at common-law upon

the rates to be charged by a wharfinger licensed under

a statute. (Munn vs. Illinois, 4 Otto 113, 129.)”).

Turning then to the all-important question of whether

the railroads are, in fact, common carriers, the

Florida court followed Kansas and held that:

In reference to a railroad company it

may be truly said that it exercises

a quasi public employment. While

railroads are managed for private

benefit and the profits resulting from

their operation go to individuals, yet

they are treated as merely a public

convenience and agency in the matter

of State and inter-State commercial

intercourse. It is the public character

attached to them which, under certain

circumstances, authorizes taxation for

their construction, as a tax for a private

purpose is unconstitutional; and it is

the like public nature of their functions

which enables them to become the

objects of a legislative grant to take the

property of an individual for their use,

paying a reasonable compensation

therefor.

Id. at 663 (emphasis added). In a string of cases

through the 1880s, the railroads’ receipt of these

special privileges was time and again used to hold

them bound by common carrier obligations.18

There was perhaps no greater example of the

abuse of these special privileges than Rockefeller’s

exploitation of unfair price discrimination to benefit

the Standard Oil Company. In her History of the

Standard Oil Company, Ida Tarbell laid out how the

See, e.g., Dinsmore, 2 F. at 468 (Cir. Ct., D. KY, 1880)

(“Railroads are quasi-public institutions” and “their construction

has been encouraged by liberal grants of power, and aided by

private and public contributions”); Taylor v. Philadelphia &

Reading R.R., 7 F. 386 (Cir. Ct., E.D. Pa. 1881) (“quasi public

corporations, such as railroads . . . are invested with important

public and governmental functions”) ; Southern Express Co. v.

Memphis, Etc., R.R,, 8 F. 799 (Cir. Ct., E.D. Ark. 1881) (“a

railroad is a quasi public corporation, and bound by the law

regulating the powers and duties of common carriers”); McCory

v. Cincinnati, Indianapolis, St. Louis & Chicago R.R., 13 F. 3

(Cir. Ct., S.D. Ohio 1882) (“railroad corporations are quasi public

corporations dedicated to public use . . . [i]t is upon this idea that

they have been invested with the power of eminent domain”).

railroads worked around their published prices for

hauling freight by offering “rebates” on shipments for

Standard Oil and how Standard Oil lobbied against

every effort to codify prohibitions on price

discrimination until the Interstate Commerce Act

(“ICA”) was finally passed in 1887. Ida M. Tarbell,

The History of the Standard Oil Company, New York,

1904, Vol. II, p. 290. It is important to note that

Standard Oil’s competitors were injured by this unfair

discrimination even without any contractual

relationship between the competitor and the railroad;

because of the railroad’s deceptive practices, a shipper

who was deterred from transporting his oil because of

the railroad’s published price did not know that

Rockefeller enjoyed a more affordable rate. This Court

would eventually call Standard Oil to account for this

pre-ICA “rebate” activity. Standard Oil Co. v. United

States, 221 U.S. 1, 32-33 (1911) (“. . . [the United

States] alleged that the combination . . . obtained

large preferential rates and rebates in many and

devious ways over their competitors from various

railroad companies, and . . . many . . . competitors

were forced either to become members of the

combination or were driven out of business . . .”).

As noted above by Justice Harlan in his dissent

in Plessy, by the turn of the century the once novel

issue of common carrier obligations applying to

railroads was simply unquestioned: the special

privileges of eminent domain and land grants bound

the railroads to these common carrier obligations.

Social Media’s Indebtedness to Special Privileges is

no Less Than the Railroads’

While it is conceivable private enterprise could

have constructed a transcontinental railroad, it is

impossible that social media platforms as they are

today would exist without the special privilege of

Section 230. Mark Zuckerberg has acknowledged

that “Section 230 made it possible for every major

internet service to be built.”19 The workhorse of

Section 230 immunity resides in the provision

immunizing platforms from liability for defamation

and other torts when publishing third-party content.

47 U.S.C. § 230(c)(1).

The sweep of this immunity is essentially

without precedent in the Western legal tradition.

Defamation claims were provided for in the Roman

Laws of the Twelve Tables of c. 450 B.C, 20 recognized

in the common-law since at least the 1500s,21 and

applicable to publishers for more than two

centuries.22

Statement of Mark Zuckerberg, CEO of Facebook, Inc.,

Does Section 230's Sweeping Immunity Enable Big Tech Bad

Behavior? Hearing Before the S. Comm. on Com., Sci., &

Transp., 116th Cong. 2 (2020).

20 The Roman Laws of the Twelve Tables stated that “[i]f anyone

sings or composes an incantation that can cause dishonor or

disgrace to another … he shall suffer a capital penalty.” Yale

Law School, The Avalon Project (last visited October 12, 2022):

https://avalon.law.yale.edu/ancient/twelve_tables.asp

Palmer v. Thorpe, 4 Coke’s Reporter 20a (1583).

Social media’s rise is no simple free-market

success story. Legal commentators have noted that

“[i]mmunity from tort liability is what also helped the

major platforms become so big, powerful, and capable

of influencing public debate—thus helping create the

problems to which common carrier status might be a

solution.” Eugene Volokh, Treating Social Media

Platforms Like Common Carriers?, 1 J. Free Speech

L. 377, 457 (2021). Jack Dorsey, the founder of

Twitter (now known as X), testified before Congress

that “Section 230 is the Internet’s most important law

for free speech and safety”23 and that Section 230 “has

created so much goodness and innovation [if] we

didn’t have those protections when we started Twitter

14 years ago, we could not start.”24 In 2017, the

Internet Association conducted a study that placed

the combined value of the protections from Section

230 and the Digital Millennium Copyright Act as

being worth $40 billion annually.25 Twitter (prior to

being taken private by Elon Musk in 2022),26

22 4 William Blackstone, Commentaries *150-53.

23 United States Senate Committee on Commerce, Science, and

Transportation,

October

28,

2020,

https://www.commerce.senate.gov/services/files/7A232503B194-4865-A86B-708465B2E5E2

Kate Conger, et al., Zuckerberg and Dorsey Face Harsh

Questioning from Lawmakers, New York Times, November 17,

2020,

https://www.nytimes.com/live/2020/11/17/technology/

twitter-facebook-hearings

Economic Value of Internet Intermediaries and the Role of

Liability Protections, NERA, June 5, 2017, P. 2

Twitter, Inc., Annual Report (Form 10-K) (Feb. 16, 2022)

(“various Executive and Congressional efforts to restrict the

Alphabet (parent company of YouTube),27 and Meta

(parent company of Facebook)28 disclosed in filings

with the Securities and Exchange Commission that

changes to Section 230 would have serious and

negative effects on their businesses.

Unencumbered by the cost of responsible

editorial oversight, social media platforms have,

unsurprisingly, blossomed.

Fulfilling Congress’ declaration of United

States policy to promote the internet29 and encourage

its use for political, educational, and cultural

purposes,30 Americans have flocked to digital

technologies since the enactment of Section 230.

Research from 2023 shows that roughly 85% of

scope of the protection from legal liability . . . under Section 230

. . . [could] result[] in increased liability for content moderation

decisions and third-party content posted on our platform and

higher litigation costs.”).

Alphabet Inc., Annual Report (Form 10-K) (Feb. 16, 2022)

(“[w]e rely on statutory harbors, as set forth in . . . Section 230 .

. .against liability for various linking, caching, and hosting

activities. Any legislation or court rulings affecting these safe

harbors may adversely affect us.”) (emphasis added).

Meta Platforms, Inc., Annual Report (Form 10-K) (Feb. 2,

2022) (“[i]n the United States, changes to Section 230 . . . may

increase our costs or require significant changes to our product,

business practices or operations, which could adversely affect

user growth and engagement.”).

29 47 U.S.C. § 230(b)(1)

30 47 U.S.C. § 230(a)(5)

Americans frequently get their news from a digital

device, with nearly 60% stating they prefer to get

their news from digital devices over television (27%),

radio (6%), or print (5%).31 Breaking this down

further, 71% of Americans will sometimes get their

news from search engines, 65% of Americans have

gotten their news from dedicated news websites and

apps, 49% from social media, and 30% from

podcasts.32

Digital’s popularity has been devastating for

the print industry. With Section 230 immunity

limited to those who publish in the digital world’s

binary code of zeros and ones, traditional ink and

paper publishers remain subject to the ancien regime

and face liability for what they publish. See, e.g., New

York Times Co. v. Sullivan, 376 U.S. 254 (1964); see

also Palin v. N.Y. Times Co., 2022 WL 599271 (S.D.

NY 2022) (defamation lawsuit by Sarah Palin against

the New York Times); Sandmann v. WP Company,

LLC, 401 F. Supp. 3d 781 (E.D. KY 2019) (defamation

lawsuit brought by Covington Catholic High School

student Nicholas Sandmann against the Washington

Post). Section 230’s impact is particularly visible in

journalism.

Between 2008 and 2020, digital

newsroom employment rose from 7,000 to 18,000,

News Platform Fact Sheet, Pew Research Center, November,

2023 https://www.pewresearch.org/journalism/fact-sheet/newsplatform-fact-sheet/

Id.

while employment in print journalism cratered from

roughly 71,000 to 31,000.33

Our 21st-century digital network is as indebted

to special privileges as was our 19th-century rail

network. And just as the railroads’ indebtedness to

the public caused courts to prohibit them from

engaging in unfair discrimination, so too should this

Court view Section (2)(b)’s consistency provision as

nothing other than a perfectly valid prohibition

against unfair discrimination.

Common Carrier Principles Apply to

Telecommunications

The common-law common carrier principles

applied to English ferries in the 1400s, British ports

in the 1600s, and Gilded Age railroads form the very

foundation of today’s regulations affecting modern

telecommunications. FTC v. Verity Int’l, Ltd., 443

F.3d 48, 58 (2d Cir. 2006). While the Interstate

Commerce Act of 1887 codified the common-law

prohibitions against unfair discrimination, it was at

first only applicable to railroads; it was expanded to

cover telephones in 1910, and telephones were then

transferred to the Federal Communications

Commission in 1934, where they remain to this day.

Id. at 57. The common-law’s application to digital

technologies is explicitly noted in Chapter 5 of the

Telecommunications Act (which also contains Section

230), which states that nothing in the Act “shall in

any way abridge or alter the remedies now existing at

U.S. Newsroom Employment has Fallen 26%

since 2008, Pew Research Center (July 13, 2021).

33 Mason Walker,

common-law or by statute, but the provisions of this

chapter are in addition to such remedies.” 47 U.S.C.

§ 414 (“Section 414”). Furthermore, entities that do

not make individualized determinations as to who

may use their services are generally considered

common carriers. U.S. Telecom Ass’n v. FCC, 825

F.3d 674, 740 (D.C. Cir. 2016). Platforms with

hundreds of millions of daily users, who hold

themselves out as admitting all comers, easily meet

this standard.34

Accordingly, the legal regime governing social

media platforms, including Section 230, runs straight

back to the common-law principles applied to ferries,

wharf owners, and railroads.

Moody relied on 47 U.S.C. § 223(e)(6) (“Section

223”) to exempt the industry from common-law

common carrier obligations. Moody, 34 F.4th at 122021. However, Section 223 addresses obscene or

harassing telephone calls; it does not relate to the

special privileges of Section 230. There is no reason

to believe Congress intended to use Section 223 to preempt the common-law provisions of Section 414. Had

Congress wanted to give platforms the ability to

discriminate against their users unfairly, it would

have done so expressly in Section 230 rather than

impliedly through Section 223.

In addition to examining Section 223, Moody

also drew on Section 230(c)(2)(A) and stated that:

34 Social media platforms such as Facebook, Twitter, YouTube

and Tik Tok have billions of users. NetChoice, 34 F.4th at 1204.

[Section 230(c)(2)(a)] goes on to provide

protections for internet companies that

are inconsistent with the traditional

common

carrier

obligation

indiscriminate service. In particular, it

explicitly protects internet companies’

ability to restrict access to a plethora of

material that they might consider

“objectionable.”

Moody, 34 F.4th at 1221. However, Section 230 does

not give platforms free rein to exclude all content they

“might consider ‘objectionable.’” The full text of 47

U.S.C § 230(c)(2)(A) reads as follows:

(2) Civil liability. No provider or user

of an interactive computer service shall

be held liable on account of—

(A) any action voluntarily taken

in good faith to restrict access

to or availability of material

that the provider or user

considers to be obscene, lewd,

lascivious, filthy, excessively

violent,

harassing,

otherwise

objectionable,

whether or not such material is

constitutionally protected;

47 U.S.C § 230(c)(2)(A) (emphasis added). Thus,

Congress has limited a Platform’s immunity to “good

faith” efforts. No mere surplus language, courts have

applied this “good faith” standard to support claims

alleging anti-competitive behavior. See, e.g., Enigma

Software Group USA, LLC v. Malwarebytes, Inc., 946

F.3d 1040, 1052 (9th Cir. 2019); E-Ventures

Worldwide, LLC v. Google, Inc., 2017 WL 2210029 *3

(M.D. FL 2017). Accordingly, Section 230 does not

offer a blank check for platforms to honor their user

contracts at their caprice and whim.

Moody also rejected the common carrier

designation based on this Court’s decision in Reno v.

American Civil Liberties Union, 521 U.S. 844, 868-69

(1997), wherein the Court stated that the “vast

democratic forums of the Internet” are not “subject to

the type of government supervision and regulation

that has attended the broadcast industry.” Moody, 34

F.4th at 1220. Section (2)(b), however, does not

impose anything close to the “type of government

supervision and regulation that has attended the

broadcast industry.” Consistent with common-law

traditions—which under Section 414 are unaffected

by Section 230—Section (2)(b) prohibits platforms

from violating their user agreements. Nothing in

Reno supports the idea that platforms are allowed to

discriminate against their users unfairly.

Moody also rejected the common carrier theory

on the ground that, while platforms are open to

anyone, users are not allowed to post anything they

please as they are bound by the terms of the service.

Moody, 34 F.4th at 1220. By this logic, an airline

whose ticket agreements contain a “no shirt, no shoes,

no service” provision is no longer a common carrier

the instant it applies this general standard to an

individual passenger. There is simply no support for

the conclusion that an entity is no longer a common

carrier the moment it engages in the individualized

application of its policies. For example, telegraph

companies were still deemed common carriers despite

enjoying the ability to screen out obscene messages.

See, e.g., O’Brien v. Western Union Tel. Co., 113 F.2d

539, 542 (1st Cir. 1940); Restatement (Second) of

Torts §§ 581, 612 (1977) (holding that telegraph

companies remain common carriers even though they

retain the authority to refuse obscene content); 1

Bruce Wyman, The Special Law Governing Public

Service Corporations, and All Others Engaged in

Public Employment § 633 (1911) (“Telegraph

companies likewise need not accept obscene,

blasphemous, profane, or indecent messages,

although there is a case which holds that the

telegraph company refuses an equivocal message at

its peril.”).

The principle that the individualized

application of terms of service does not impact a

business’s designation as a common carrier is

demonstrated in the recent case of Conservation

Force v. Delta Air Lines, Inc., 190 F. Supp. 3d 606

(N.D. Tex. 2016); aff’d 682 Fed. Appx. 310 (5th Cir.

2017) (mem.). In Conservation Force, a passenger

claimed that Delta had unfairly discriminated

against him by refusing to transport his big-game

trophy. Id. Deeming Delta Air Lines to be a common

carrier, the court drew upon this Court’s decision in

Missouri Pacific Railroad Co. v. Larabee Flour Mills

Co., 211 U.S. 612, 620 (1909), wherein the Court held

that “a party engaging in the business of a common

carrier is bound to treat all shippers alike and can be

compelled to do so.” Conservation Force, 190 F. Supp.

3d at 610. The District Court held that common

carriers are free to set their carriage policies however

they see fit, subject to the one condition that they

apply them equally to all customers; as such, the ban

on big game trophies was valid, provided it was

applied equally to all shippers. Id. at 610. Had it

adopted Moody’s rationale on the individualized

application of terms of service, the Conservation

Force court would not have wasted time applying a

century-old railroad precedent to 21st-century air

travel because Delta would not be deemed a common

carrier.

Similar to Delta’s ability to prohibit the

carriage of big game trophies if it so chooses, under

S.B. 7072, platforms remain free to define the

parameters of their own Censorship Standards.

However, just as with Delta’s trophy policy, platforms

are required to apply these terms consistently to all

users. To that end, Section (2)(b) is nothing other

than a codification of the common-law principles

courts applied to the railroads in the 1800s and the

Conservation Force court applied to the airlines over

a century later.

The First Amendment is not Carte Blanche to Break

Contracts

Moody dismissed the consistency provision of

Section (2)(b) by turning the First Amendment into a

one-sided veto by which platforms, and only

platforms, can ignore the terms they placed in their

own user agreements. The Moody court incredulously

asked if there is “any interest that would justify a

state forcing, for instance, a parade organizer to apply

its criteria for participation in a manner that the state

deems ‘consistent’?” Moody 34 F.4th at 1229. Amicus

Trump respectfully submits that the state has

precisely such an interest: the proper and effective

enforcement of consumer contracts.

By analogizing to parade organizers, the

Moody court was drawing upon this Court’s decision

in Hurley v. Irish American Gay, Lesbian & Bisexual

Group of Boston, 515 U.S. 557 (1995). In Hurley, this

Court stated that a state public accommodation law

infringed on the free speech rights of parade

organizers. Hurley, 515 U.S. at 564. The organizers

denied homosexual organizations the ability to

participate in a St. Patrick’s Day parade, and this

Court held that the application of the law would force

the organizers to disseminate views with which they

might disagree. Id. at 586.

Contrary to the reading of the Moody court,

Hurley supports the validity of Section (2)(b).

Consider the perspective of participants who entered

the parade specifically relying on the organizers’

representation of homosexual groups.

Had the

organizers nevertheless allowed such groups to

participate, this would have contradicted the

representations they made to the other entrants.

Under the Moody reading of Hurley, even if these

participants executed binding contracts with the

organizers, the First Amendment would act as a

complete defense to the organizer’s false

representations. The First Amendment has never

been interpreted as a refuge for parties to make

deceptive statements to consumers.

See, e.g.,

Zauderer v. Office of Disciplinary Counsel of the

Supreme Court of Ohio, 471 U.S. 626 (1985).

In addition to Hurley, Moody also relied on this

Court’s decisions in Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974), Pacific Gas & Electric

Co. v. Public Utilities Commission of California, 475

U.S. 1 (1986), and Turner Broadcasting Systems, Inc.

v. FCC, 512 U.S. 622 (1994). These cases similarly

fail to support an argument that the First

Amendment trumps the contractual agreements of

private parties. In Tornillo, the Court held that a law

requiring newspapers to carry a politician’s response

to a critical story unfairly impaired the newspaper’s

free speech rights. In Pacific Gas, this Court held that

a utility company could not be forced to include

messages with which it disagreed in mailings to

customers. Finally, in Turner, the Court held that

cable companies had a protected speech interest in

the channels carried on their systems. Moody held

that these cases establish that a platform’s “decisions

about whether, to what extent, and in what manner

to disseminate third party-created content to the

public are editorial judgments protected by the First

Amendment.” Moody, 34 F.4th at 1212. While this

quartet of cases protects a platform’s decisions about

what to cover in their own Censorship Standards,

they do not stand for the position that the First

Amendment is a “get out of deceptive statements free”

provision, allowing platforms to discriminate against

their users unfairly. Section (2)(b) is not a “must

carry” provision—it is a non-expressive provision,

imposing no conditions on what a platform may

censor, only demanding that if platforms set

Censorship Standards, they honor and consistently

apply them.

CONCLUSION

Section (2)(b)’s consistency provision impacts

neither the First Amendment nor Section 230, and

should be upheld by this Court. As Section (2)(b) is

independent of the rest of S.B. 7072 and has no

comparable provision within Texas’ H.B. 20,

upholding Section (2)(b) will not impact the Court’s

ruling on other provisions of either law.

No reading of the First Amendment allows

platforms to make deceptive statements to

consumers. Moreover, activity immunized by Section

230 is, by definition, not a platform’s speech. As

Section 230 immunity clothes platforms with the

same public purpose that courts found applicable to

the railroads, so too must their acceptance of this

special privilege carry with it the prohibition against

unfair discrimination.

No less than our

transcontinental rail network, our modern digital

communications network is completely indebted to

public beneficence for its creation and maintenance.

Accordingly, the platforms are common carriers

bound to refrain from unfairly discriminating against

their users, and Section (2)(b) is a lawful codification

of this ancient common-law principle.

Respectfully submitted,