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

No. 22-277 and 22-555

In the

Supreme Court of the United States

ASHLEY MOODY, ATTORNEY GENERAL

OF FLORIDA, et al.,

Petitioners,

v.

NETCHOICE, LLC, DBA NETCHOICE, et al.,

Respondents.

NETCHOICE, LLC, DBA NETCHOICE, et al.,

Petitioners,

v.

KEN PAXTON, ATTORNEY GENERAL OF TEXAS,

Respondent.

On Writs of Certiorari to the United States Courts of

A ppeals for the Eleventh and Fifth Circuits

BRIEF OF AMICUS CURIAE THE CENTER

FOR AMERICAN LIBERTY IN SUPPORT

OF PETITIONERS IN 22-277 AND

RESPONDENT IN 22-555

Harmeet K. Dhillon

Mark Trammell

Josh Dixon

Eric Sell

Center For A merican

Liberty

1311 South Main Street,

Suite 207

Mount Airy, MD 21771

Randall W. Miller

Counsel of Record

Munsch Hardt Kopf

& Harr, PC

500 North Akard Street,

Suite 4000

Dallas, TX 75201

(214) 855-7500

rwmiller@munsch.com

Counsel for Amicus Curiae

326975

i

TABLE OF CONTENTS

Page

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

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

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

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

PLATFORMS ARE NOT PROTECTED

BY THE FIRST AMENDMENT WHEN

THEY ACT IN CONCERT WITH THE

GOVERNMENT TO CENSOR SPEECH . . . . . 2

A. State Actors Are Not Entitled To First

Amendment Protection . . . . . . . . . . . . . . . . . 3

B. Platforms Are State Actors When They

Act In Concert With The Government

To Censor Protected Speech . . . . . . . . . . . . 4

1.

The Joint Action Test Shows

Platforms Engage In State Action

When They Censor Content At The

Request Of The Government . . . . . . . . . 6

2. The Nexus Test Reveals The State’s

Significant Influence Over Platforms

That Agree To Censor Content

Based On Government Preferences . . . 8

ii

Table of Contents

Page

II. THE PLATFORMS CANNOT SUSTAIN

A FACI A L CH A LLENGE TO THE

UNDERLYING STATUTES . . . . . . . . . . . . . . .11

A. The State Statutes Are Not Substantially

Overbroad Because They Do Not

Chill Protected Speech . . . . . . . . . . . . . . . . 11

B. The Platforms May Only Bring An AsApplied Challenge . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Alberto San, Inc. v. Consejo De Titulares Del

Condominio San Alberto,

522 F.3d 1 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . 5

Ashwander v. Tenn. Valley Auth.,

297 U.S. 288 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Bass v. Parkwood Hosp.,

180 F.3d 234 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 5

Blum v. Yaretsky,

457 U.S. 991 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Brentwood Acad. v.

Tenn. Secondary Sch. Athletic Ass’n,

531 U.S. 288 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Broadrick v. Oklahoma,

413 U.S. 601 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Burton v. Wilmington Parking Auth.,

365 U.S. 715 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Cent. Hardware Co. v. NLRB,

407 U.S. 539 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Columbia Broad. Sys. Inc., v.

Democratic Nat. Comm.,

412 U.S. 94 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

iv

Cited Authorities

Page

Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc.,

473 U.S. 788 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Deja Vu of Nashville, Inc. v. Metro. Gov’t of

Nashville & Davidson Cnty., Tenn.,

274 F.3d 377 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 11

Denver Area Educ. Television Consortium v.

FCC,

518 U.S. 727 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Edmonson v. Leesville Concrete Co., Inc.,

500 U.S. 614 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

Evans v. Newton,

382 U.S. 296 (1966) . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 10

FCC v. Pacifica Found.,

438 U.S. 726 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Focus on the Family v. Pinellas Suncoast

Transit Auth.,

344 F.3d 1263 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . 5

Heart of Atlanta Motel v. United States,

379 U.S. 241 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hudgens v. NLRB,

424 U.S. 507 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

v

Cited Authorities

Page

Int’l Soc’y for Krishna Consciousness, Inc. v.

Lee,

505 U.S. 672 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Jatoi v. Hurst-Euless-Bedford Hosp. Auth.,

807 F.2d 1214 (5th Cir. 1987), cert. denied,

484 U.S. 1010 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

Knight First Amend. Inst. v. Trump,

928 F.3d 226 (2d Cir. 2019), cert. granted,

judgment vacated sub nom. Biden v. Knight

First Amend. Inst., 141 S. Ct. 1220 (2021) . . . . . . . . 10

Libin v. Town of Greenwich,

625 F. Supp. 393 (D. Conn. 1985) . . . . . . . . . . . . . . . . . 6

Lugar v. Edmonson Oil Co.,

457 U.S. 922 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 7

Manhattan Cmty. Access Corp. v. Halleck,

139 S. Ct. 1921 (2019) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Metro Display Advert., Inc. v. City of Victorville,

143 F.3d 1191 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 3

Milo v. Cushin Mun. Hosp.,

861 F.2d 1194 (10th Cir. 1988) . . . . . . . . . . . . . . . . . . 10

Missouri v. Biden,

83 F.4th 350 (5th Cir. 2023), cert. granted

sub nom. Murthy v. Missouri, 144 S. Ct. 7

(2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15

vi

Cited Authorities

Page

Moose Lodge No. 107 v. Irvis,

407 U.S. 163 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Nat’l Rifle Ass’n of Am. v. Vullo,

49 F.4th 700 (2d Cir. 2022), cert. denied and

granted in part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NetChoice, LLC v. Att’y Gen., Fla.,

34 F.4th 1196 (11th Cir. 2022), cert. granted

in part sub nom. Moody v. Netchoice, LLC,

216 L. Ed. 2d 1313 (Sept. 29, 2023), and cert.

denied sub nom. NetChoice, LLC v. Moody,

144 S. Ct. 69 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Netchoice, LLC v. Paxton,

49 F.4th 439 (5th Cir. 2022) . . . . . . . . . . . . . . . . . 11, 16

O’Handley v. Weber,

62 F.4th 1145 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . 1, 8

Osborne v. Ohio,

495 U.S. 103 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

PruneYard Shopping Ctr. v. Robins,

447 U.S. 74 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Sabri v. United States,

541 U.S. 600 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

vii

Cited Authorities

Page

Seals v. McBee,

898 F.3d 587 (5th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 12

Sec’y of State of Md. v. Joseph H. Munson Co.,

467 U.S. 947 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

Sigmon v. CommunityCare HMO, Inc.,

234 F.3d 1121 (10th Cir. 2000) . . . . . . . . . . . . . . . . . . . 7

Spector v. Norwegian Cruise Line Ltd.,

545 U.S. 119 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Sutton v. Providence St. Joseph Med. Ctr.,

192 F.3d 826 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 7

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

512 U.S. 622 (1994) . . . . . . . . . . . . . . . . . . . . . 11, 16, 17

United States v. Hansen,

599 U.S. 762 (2023) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

United States v. Price,

383 U.S. 787 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Raines,

362 U.S. 17 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Stevens,

559 U.S. 460 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

viii

Cited Authorities

Page

United States v. Williams,

553 U.S. 285 (2008) . . . . . . . . . . . . . . . . . . . . . 12, 15, 16

Vill. of Hoffman Ests. v.

Flipside, Hoffman Ests., Inc.,

455 U.S. 489 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Wash. State Grange v.

Wash. State Republican Party,

552 U.S. 442 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 16, 18

West v. Atkins,

487 U.S. 42 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Whitney v. California,

274 U.S. (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Wickersham v. City of Columbia,

481 F.3d 591 (8th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 10

Statutes and Other Authorities

U.S. Const. Amend. I . . . . . . . . . . . 1, 2, 3, 4, 5 ,6, 8, 10, 11

12, 15, 17, 18, 19, 20

U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . 3

U.S. Const. Art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

47 U.S.C. § 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ix

Cited Authorities

Page

E rwin C h em erinsk y, C onst i t u t iona l L aw :

Principles and Policies 573 (6th ed., 2019) . . . . . . . . 4

Fla. Stat. § 106.072 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Fla. Stat. § 106.072(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Fla. Stat. § 501.2041 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Fla. Stat. § 501.2041(j) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tex. H.B. 20, § 143A.002 . . . . . . . . . . . . . . . . . . . . . . . . . 13

S.B. 7072 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

1

INTEREST OF THE AMICUS CURIAE

The Center for American Liberty (“CAL”) is a

nonprofit law firm dedicated to protecting civil liberties

and enforcing constitutional limitations on government

power. CAL represents litigants in courts across the

country and has an interest in ensuring the application

of the correct legal standard in First Amendment cases.1

CAL also represents individuals in matters involving

censorship and social media freedoms of speech. For

example, CAL is counsel of record for the plaintiff

in O’Handley v. Weber, 62 F.4th 1145 (9th Cir. 2023).

O’Handley involves a First Amendment challenge to

a California censorship statute that required Twitter

(now X) to remove the plaintiff’s comments regarding

California’s elections as “misinformation.” CAL is familiar

with the constitutional questions at issue in NetChoice

and seeks to advance greater protections for individual

social media use.

SUMMARY OF THE ARGUMENT

When social media platforms (“Platforms”) collaborate

with the government to restrict user content based on the

viewpoint being expressed, the Platforms’ censorship may

be fairly attributable to the state. As a result, Platforms

are properly treated as state actors when they serve as

1. Amicus curiae states that no counsel for a party authored

this brief in whole or in part, and no party or counsel for a party

contributed money intended to fund the preparation or submission

of this brief. No person other than amicus curiae or its counsel

contributed money intended to fund the preparation or submission

of this brief.

2

agents of the state or closely work with the government

to moderate user content on their sites based on the

government’s preferences. As state actors, Platforms

cast off their First Amendment rights in exchange for

the constitutional restraints placed on the government.

Both Texas’s House Bill 20 (“H.B. 20”) and Florida’s

Senate Bill 7072 (“S.B. 7072”) pass the facial challenges

that the Platforms bring. The statutes restrict Platforms’

censorship of protected speech and promote content

neutrality. Because the user content on social media

websites is not the Platforms’ speech, the Platforms

cannot demonstrate that the statutes chill protected

speech. And because Platforms routinely collaborate with

the government when engaging in content moderation—

activity that divests them of their First Amendment

rights—they cannot demonstrate that the statutes are

substantially overbroad. Since the Platforms cannot

prevail on facial challenges, they must bring as-applied

challenges to address any alleged constitutional harm.

ARGUMENT

I.

PLATFORMS ARE NOT PROTECTED BY THE

FIRST AMENDMENT WHEN THEY ACT IN

CONCERT WITH THE GOVERNMENT TO

CENSOR SPEECH.

When Platforms coordinate with the government

to exclude user content based on the view expressed

by the user, Platforms become state actors subject to

constitutional scrutiny.

3

A.

State Actors Are Not Entitled To First

Amendment Protection.

“A fundamental tenet of our Constitution is that the

government is subject to constraints which private persons

are not.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee,

505 U.S. 672, 696 (1992) (Kennedy, J., concurring). “This

fundamental limitation on the scope of the constitutional

guarantees preserves an area of individual freedom

by limiting the reach of [the] law” while “permit[ting]

citizens to structure their private relations as they choose

subject only to the constraint of statutory or decisional

law.” Edmonson v. Leesville Concrete Co., Inc., 500 U.S.

614, 619 (1991). These constitutional constraints naturally

extend to state actors, especially in the First Amendment

context. See Hudgens v. NLRB, 424 U.S. 507, 513 (1976)

(“It is, of course, a commonplace that the constitutional

guarantee of free speech is a guarantee only against

abridgment by government, federal or state.”); Cent.

Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972) (“The

First and Fourteenth Amendments are limitations on

state action, not on action by the owner of private property

used only for private purposes.”).

The principle that the government is prohibited from

regulating the content or message of speech “should be

and is obvious to everyone.” Metro Display Advert., Inc.

v. City of Victorville, 143 F.3d 1191, 1196 (9th Cir. 1998).

The Framers intended the First Amendment to protect

against “silence coerced by law” that “discourage[s]

thought, hope and imagination” by penalizing the message

of speech. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269–71

(1964) (quoting Whitney v. California, 274 U.S. 375,

375–76 (1927) (Brandeis, J., concurring)).

4

“[W]hen private individuals or groups are endowed

by the State with powers or functions governmental in

nature, they become agencies or instrumentalities of the

State and subject to its constitutional limitations.” Evans

v. Newton, 382 U.S. 296, 299 (1966). Otherwise, a state

would be free to evade constitutional limitations simply

by “contracting out” its functions to a private entity. West

v. Atkins, 487 U.S. 42, 56 & n.14 (1988). Doing so would

“leave its citizens with no means for vindication of those

rights” when denied by a “private” actor. Id.

State actors violate the First Amendment by denying

a person access to express their viewpoint “solely to

suppress the point of view he espouses on an otherwise

includible subject.” Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788, 806 (1985). A private company

transforms into a state actor subject to the Constitution

when its actions are “fairly attributable” to the state.

Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982).

Stated differently, when “the government affirmatively

authorizes, encourages, or facilitates private conduct that

violates the Constitution,” the private entity is treated as a

state actor that is constrained by—not protected by—the

First Amendment. Erwin Chemerinsky, Constitutional

Law: Principles and Policies 573 (6th ed., 2019).

B. Platforms Are State Actors When They Act

In Concert With The Government To Censor

Protected Speech.

Platforms acting in concert with the Government

to censor protected speech is a quintessential example

of conduct that transforms private entities into state

actors. As state actors, Platforms no longer enjoy First

5

Amendment protection themselves; rather, they are

subject to the First Amendment constraints—just like

any other state actor.

Unfortunately, this Court’s “cases deciding when

private action might be deemed that of the state have not

been a model of consistency.” Edmonson, 500 U.S. at 632

(O’Connor, J., dissenting). For instance, the Lugar Court

recognized four separate tests to evaluate when a private

entity should be treated as a state actor: (1) the public

function test, (2) the state compulsion test, (3) the nexus

test, and (4) the joint action test. Lugar, 457 U.S. at 939. At

the heart of each of these tests, there must be “‘something

more’ which would convert the private party into a state

actor” than merely everyday action by a Platform. Id. The

Court declined to evaluate “[w]hether these different tests

are actually different in operation or simply different ways

of characterizing the necessarily fact-bound inquiry”. Id.

Whether separate or just interchangeable descriptions

of characterizing the same analysis, the joint action and

nexus tests best capture the relevant facts when Platforms

partner with the government. See, e.g., Focus on the

Family v. Pinellas Suncoast Transit Auth., 344 F.3d

1263, 1277 (11th Cir. 2003) (treating the joint action and

nexus tests interchangeably); Bass v. Parkwood Hosp., 180

F.3d 234, 242 (5th Cir. 1999) (same); Alberto San, Inc. v.

Consejo De Titulares Del Condominio San Alberto, 522

F.3d 1, 4 (1st Cir. 2008) (same).

Regardless of whether the Court employs the joint

action test or nexus test, the result is the same: when

Platforms act in concert with a government official,

government agency, or other governmental entity, the

joint conduct between the government and the Platforms

6

should be “treated as that of the State itself.” Brentwood

Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S.

288, 295 (2001). When the Platforms act as state actors,

they trade their First Amendment protections as private

entities for the limits that the Constitution places on the

government when it tries to curb protected speech. See

Denver Area Educ. Television Consortium v. FCC, 518

U.S. 727, 738 (1996) (plurality op.) (noting that classifying

cable operators as state actors “could itself interfere

with their freedom to speak” because state actors are

subject to—and not protected by—the First Amendment);

Columbia Broad. Sys. Inc., v. Democratic Nat. Comm.,

412 U.S. 94, 139 (1973) (“To hold that broadcaster[s are

state actors] would . . . strip [them] of their own First

Amendment rights.”) (Stewart, J., concurring); Libin v.

Town of Greenwich, 625 F. Supp. 393, 396 (D. Conn. 1985)

(“[A] state actor does not have a First Amendment right of

free expression, at least in those situations in which such

a right would conflict with the First Amendment rights

of citizens.”); see also Manhattan Cmty. Access Corp. v.

Halleck, 139 S. Ct. 1921, 1926 (2019) (“The Free Speech

Clause of the First Amendment constrains governmental

actors and protects private actors.”); Evans, 382 U.S. at

299 (“[W]here a State delegates an aspect of the elective

process to private groups, they become subject to the same

restraints as the State.”).

1.

The Joint Action Test Shows Platforms

Engage In State Action When They

Censor Content At The Request Of The

Government.

When the state partners with a Platform to conduct

certain activities, such as censoring protected speech,

the Platform’s conduct is transformed into state action.

7

“Under this Court’s cases, a private entity can qualify

as a state actor . . . when the government acts jointly with

the private entity.” Halleck, 139 S. Ct. at 1928 (citing

Lugar, 457 U.S. at 941–42). When “[t]he State has so far

insinuated itself into a position of interdependence with

[the private company] that it must be recognized as a joint

participant in the challenged activity,” it is only fair to

afford Platforms the same liability to the Constitution as

the government. Burton v. Wilmington Parking Auth.,

365 U.S. 715, 725 (1961).

It is a “well-accepted principle that a private party’s

joint participation in a conspiracy with the state provides

a sufficient nexus to hold the private party responsible as

a governmental actor.” Sutton v. Providence St. Joseph

Med. Ctr., 192 F.3d 826, 840 (9th Cir. 1999) (citing Lugar,

457 U.S. at 941) (using the language of nexus but applying

the joint action test). The joint action test does not require

private persons to act under the color of law to conspire

with the state; “[i]t is enough that he is a willful participant

in joint activity with the State or its agents.” Lugar, 457

U.S. at 941 (quoting United States v. Price, 383 U.S. 787,

794 (1966)). Much like the nexus test, some circuits rely

on the elements of civil conspiracy to prove willful joint

action because a requirement to prove conspiracy is the

meeting of the minds. See, e.g., Sigmon v. CommunityCare

HMO, Inc., 234 F.3d 1121, 1126 (10th Cir. 2000) (“[O]ne

way to prove willful joint action is to demonstrate that

the public and private actors engaged in a conspiracy.”).

But even under the conspiracy standard, an agreement

between the Platforms and government to limit protected

speech shows that the subsequent censorship is state

action because the government and Platform knowingly

8

agreed to curb user content. This type of censorship

violates the First Amendment rights of the persons

censored because the Platform’s censorship is directly

attributable to the state.

2.

The Nexus Test Reveals The State’s

Significant Influence Over Platforms

That Agree To Censor Content Based On

Government Preferences.

Whether approached through the lens of Brentwood

or Blum, the nexus test shows state action when the

state’s influence over any Platform is significant enough

to convince Platforms to cut user content based on a

message’s viewpoint. See O’Handley, 62 F.4th at 1157–58

(delineating between the two approaches).

First, the Brentwood approach asks whether a

Platform’s “nominally private character . . . is overborne

by the pervasive entwinement of public institutions and

public officials in its composition and workings, and there

is no substantial reason to claim unfairness in applying

constitutional standards to it.” Brentwood Acad., 531 U.S.

at 289. Actions by Platforms should be treated as state

action “if[] there is such a close nexus between the State

and the challenged action that seemingly private behavior

may be fairly treated as that of the State itself.” Id. at

295 (internal quotation omitted). When Platforms work

closely with government actors to censor user speech

based on content that the government disapproves of, that

clearly demonstrates the close nexus that merits treating

Platforms as the state itself.

9

Second, this Court has interpreted the “coercive” test

as an overlapping approach to the nexus test. See Blum v.

Yaretsky, 457 U.S. 991, 1004 (1982). Generally, this implies

that a government agency has threatened some adverse

action to coerce a private party into action. Id. The threat

must be beyond the pale of a mere attempt to convince and

enter into the realm of coercion. See Nat’l Rifle Ass’n of

Am. v. Vullo, 49 F.4th 700, 717 (2d Cir. 2022), cert. denied

and granted in part (reviewing factors between convincing

and coercing). “The purpose of this requirement is to

assure that constitutional standards are invoked only

when it can be said that the State is responsible for the

specific conduct of which the plaintiff complains.” Blum,

457 U.S. at 1004. A clear example of state action would

be a Platform’s agreement with the government to censor

specific user viewpoints expressed on the Platform as a

result of the government threatening an investigation,

regulatory action, or other form of punishment for failing

to remove the objectionable content. 2

Under either approach, the nexus test reveals the

“symbiotic relationship” between Platforms and the state

when there is a coordinated effort to censor protected

speech. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175

(1972). For instance, when the state intimately relies on

a Platform to disseminate and censor information for

the government, it transforms a business transaction

into a cooperative relationship necessary to control the

dissemination of information through messaging and

censorship. See, e.g. Jatoi v. Hurst-Euless-Bedford Hosp.

2. The same is true when the government provides

“significant encouragement” to the Platform to censor protected

speech. Blum, 457 U.S. at 1004.

10

Auth., 807 F.2d 1214, 1221 (5th Cir. 1987) cert. denied,

484 U.S. 1010 (1988) (concluding that a hospital authority

dependent on a private company to operate public hospital

collections had a sufficient nexus); Milo v. Cushin Mun.

Hosp., 861 F.2d 1194, 1196–97 (10th Cir. 1988) (finding that

a private company who managed a public trust hospital

had a sufficient nexus).

When Platforms act in concert with the government

to remove specific user content from their sites, they are

acting as state actors, not private entities. See Evans,

382 U.S. at 299 (“Conduct that is formally ‘private’ may

become so entwined with governmental policies or so

impregnated with a governmental character as to become

subject to the constitutional limitations placed upon state

action.”); Knight First Amend. Inst. v. Trump, 928 F.3d

226, 236 (2d Cir. 2019), cert. granted, judgment vacated

sub nom. Biden v. Knight First Amend. Inst., 141 S.

Ct. 1220 (2021) (holding the president’s private Twitter

account was not protected by the First Amendment when

used for government purposes); Wickersham v. City of

Columbia, 481 F.3d 591, 600 (8th Cir. 2007) (suggesting a

private actor may “forfeit[] some of its right[s] to deliver

its own message unimpeded by others when it assumes

the role of state actor”). As a result, Platforms forfeit

their First Amendment protections and are treated like

the state itself when they act as a conduit for government

censorship of protected speech.

11

II. T H E PL AT FORMS CA N NO T SUSTA I N A

FACIAL CHALLENGE TO THE UNDERLYING

STATUTES.

A First Amendment facial challenge “means a claim

that the law is invalid in toto.” Vill. of Hoffman Ests.

v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 494 n.5

(1982) (cleaned up). The Platforms cannot prevail on a

facial challenge to either the Texas law or the Florida

law. NetChoice Pet. Br. at 35 n.7. Namely, neither statute

is substantially overbroad because there are multiple

scenarios where each law may be validly applied and

neither law chills protected speech.

A.

The State Statutes Are Not Substantially

O verbroad Because They Do Not Chill

Protected Speech.

The overbreadth doctrine exists “to prevent the

chilling of future protected expression.” Deja Vu of

Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson

Cnty., Tenn., 274 F.3d 377, 387 (6th Cir. 2001) (internal

citation omitted). The state statutes “do[] not chill

speech; instead, [they] chill censorship.” Netchoice, LLC

v. Paxton, 49 F.4th 439, 450 (5th Cir. 2022). Because

Platforms do not function like newspapers that exercise

editorial decision-making authority to curate a distinct

message, but are instead akin to cable operators that

permit private channels to air the messages they wish, a

social media user’s speech is not the speech of the Platform

itself. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,

654–57 (1994) (distinguishing between cable operators

that carry broadcasts without regard to the third-party

content and newspapers that exercise editorial control

12

over their content). Moreover, because Platforms lose

their First Amendment rights when they collaborate

with the government, they cannot demonstrate that the

statutes implicate their First Amendment rights in those

situations. See, e.g., Missouri v. Biden, 83 F.4th 350,

381–89 (5th Cir. 2023), cert. granted sub nom. Murthy

v. Missouri, 144 S. Ct. 7 (2023) (holding coordination

between the government and social media companies to

censor protected speech violated the First Amendment).

“To show overbreadth, [the Platforms] must establish

that [the state statutes] encompass[] a substantial number

of unconstitutional applications ‘judged in relation to the

statute[s’] plainly legitimate sweep.’” Seals v. McBee,

898 F.3d 587, 593 (5th Cir. 2018). These applications

“must be realistic, not fanciful, and their number must

be substantially disproportionate to the statute’s lawful

sweep.” United States v. Hansen, 599 U.S. 762, 770 (2023);

see also Osborne v. Ohio, 495 U.S. 103, 112 (1990) (“[T]

he scope of the statute does not render it unconstitutional

unless its overbreadth is not only real, but substantial

as well. . . .”). As shown by the overbreadth analysis,

neither the Texas statute nor the Florida statute qualify

as substantially overbroad.

“The first step in overbreadth analysis is to construe

the challenged statute; it is impossible to determine

whether a statute reaches too far without first knowing

what the statute covers.” United States v. Stevens, 559

U.S. 460, 474 (2010) (quoting United States v. Williams,

553 U.S. 285, 293 (2008)). “If the challenger demonstrates

that the statute ‘prohibits a substantial amount of

protected speech’ relative to its ‘plainly legitimate sweep,’

then society’s interest in free expression outweighs its

13

interest in the statute’s lawful applications, and a court

will hold the law facially invalid.” Hansen, 599 U.S. at

770. But the Court has limited overbreadth findings to

“substantially overbroad” statutes. When evaluating

“substantiality” the Court should look to whether “despite

some possibly impermissible application, the remainder

of the statute covers a whole range of easily identifiable

and constitutionality proscribable conduct.” Sec’y of State

of Md. v. Joseph H. Munson Co., 467 U.S. 947, 964 (1984)

(cleaned up).

The Platforms took issue with Section 7 of the Texas

law, which in pertinent part states the following:

CENSORSHIP PROHIBITED.

(a) A social media platform may not censor a

user, a user’s expression, or a user’s ability to

receive the expression of another person based

on:

(1) the viewpoint of the user or another person;

(2) the viewpoint represented in the user’s

expression or another person’s expression; or

(3) a user’s geographic location in this state or

any part of this state.

Tex. H.B. 20, § 143A.002.

Likewise, the Florida statute S.B. 7072 (codified as

Fla. Stat. §§ 106.072, 501.2041) contains provisions that

the Platforms dislike:

14

A social media platform may not willfully

deplatform a candidate for office who is known

by the social media platform to be a candidate,

beginning on the date of qualification and

ending on the date of the election or the date

the candidate ceases to be a candidate. A

social media platform must provide each user

a method by which the user may be identified

as a qualified candidate and which provides

sufficient information to allow the social media

platform to confirm the user’s qualification

by reviewing the website of the Division of

Elections or the website of the local supervisor

of elections.

S.B. 7072, codified Fla. Stat. § 106.072(2).

A social media platform may not take any

action to censor, deplatform, or shadow ban a

journalistic enterprise based on the content of

its publication or broadcast. Post-prioritization

of certain journalistic enterprise content based

on payments to the social media platform by

such journalistic enterprise is not a violation

of this paragraph. . . .

S.B. 7072, codified Fla. Stat. § 501.2041(j); see NetChoice,

LLC v. Att’y Gen., Fla., 34 F.4th 1196 (11th Cir. 2022), cert.

granted in part sub nom. Moody v. Netchoice, LLC, 216

L. Ed. 2d 1313 (Sept. 29, 2023), and cert. denied sub nom.

NetChoice, LLC v. Moody, 144 S. Ct. 69 (2023) (reviewing

S.B. 7072 for all parts, injunction affirmed in part and

reversed in part).

15

Here, the state statutes apply to one group—the

Platforms. They are narrowly tailored to address

unregulated censorship of individual expression exercised

by the Platforms. Placing this tailored limit on censorship

for the purpose of promoting the expression and ideas

of millions who post content to the Platforms shows that

any potential overbreadth is not substantial when viewed

“in relation to the statute[s’] plainly legitimate sweep”

protecting the viewpoint of millions of Platform users.

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). And

because the Platforms regularly coordinate with the

government in performing these activities, there are no

First Amendment implications in those situations. See,

e.g., Missouri, 83 F.4th at 359–66 (discussing at length

the federal government’s coordination with Platforms to

censor protected speech). Even if there is “some possibly

impermissible application” to the Platforms, the statutes

also permissibly regulate business actions, namely,

curbing content restriction based on viewpoint. Munson,

467 U.S. at 964.

Moreover, the rationale for overbreadth challenges,

protecting individuals from chilling speech, is not

applicable here. H.B. 20 and S.B. 7072 promote “the

free exchange of ideas.” Williams, 553 U.S. at 292.

Comparatively, any alleged chilling of the Platforms’

ability to regulate content is minimal when viewed

against the preservation of First Amendment liberties

for millions of monthly active users. While the Platforms

have argued that H.B. 20 and S.B. 7072 should be facially

invalid because they prohibit the Platforms from censoring

pro-nazi messages, terrorist propaganda, and Holocaust

denials, the Fifth Circuit properly rebuked this fictional

scenario:

16

Far from justifying pre-enforcement facial

invalidation, the Platforms’ obsession with

terrorists and Nazis proves the opposite.

The Supreme Court has instructed that “in

determining whether a law is facially invalid,”

we should avoid “speculating about hypothetical

or imaginary cases.” Overbreadth doctrine

has a “tendency . . . to summon forth an

endless stream of fanciful hypotheticals,” and

this case is no exception. But it’s improper to

exercise the Article III judicial power based on

“hypothetical cases thus imagined.”

Paxton, 49 F.4th at 452 (cleaned up) (citing Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442,

449–50 (2008); Williams, 553 U.S. at 301; and United

States v. Raines, 362 U.S. 17, 22 (1960)).

By their text, the statutes pervasively promote

viewpoint neutrality by encouraging more speech, rather

than censorship, as the response to different viewpoints.

Neutrality has the effect of forcing a Platform to host

content that it otherwise would not choose to host; but

this content is a third-party user’s speech, not speech of

the Platform itself. Turner Broad. Sys., Inc., 512 U.S.

at 654–57 (concluding that law requiring local television

stations to carry specific broadcasts is viewpoint neutral

and constitutional, in part because there was “little risk”

that viewers would confuse the broadcasted content as

the cable operator’s speech).

So-called “must-carry” laws do not force operators of

media outlets to speak or respond to messages they carry.

See id. at 655. Platforms may disclaim users’ viewpoint

17

if they choose to do so—although, there is little risk that

content posted by millions of social media users would

be confused as a Platform’s speech—and the Court has

erred on the side of access when the protected speech of

the user would “not likely be identified with those of the

owner.” PruneYard Shopping Ctr. v. Robins, 447 U.S.

74, 87 (1980). Platforms are even further insulated from

their users’ viewpoints by statute. See 47 U.S.C. § 230;

NetChoice, 49 F.4th at 448 (“Platforms are not ‘speaking’

when they host other people’s speech” as “reinforced by

47 U.S.C. § 230”).

“The First Amendment’s command that government

not impede the freedom of speech does not disable the

government from taking steps to ensure that private

interests not restrict, through physical control of a critical

pathway of communication, the free flow of information

and ideas.” Turner Broad. Sys., Inc., 512 U.S. at 657.

The state statutes seek to keep open “the free flow of

information and ideas” on what has become “critical

pathway[s] of communication,” the Platforms. Id.

On their face, H.B. 20 and S.B. 7072 easily survive

an overbreadth challenge. Any hypotheticals that the

Platforms can conjure up about the unconstitutionality of

the statutes fall far short of the heavy burden they must

prove to show the laws are facially invalid.

B. The Platforms May Only Bring An As-Applied

Challenge.

Statutes that are not overbroad are subject to the

traditional burden of proving a facial challenge—an

almost insurmountable task. Because they “often rest on

18

speculation” “[f]acial challenges are disfavored” by courts.

Wash. State Grange, 552 U.S. at 450. This Court should

continue to heed the principle of judicial restraint by

declining to “formulate a rule of constitutional law broader

than is required by the precise facts to which it is to be

applied.” Id. at 450 (quoting Ashwander v. Tenn. Valley

Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).

Instead, the Platforms should be required to bring

as-applied challenges to demonstrate how the statutes

allegedly infringe on each Platform’s constitutional rights.

The Platforms are unable to show “that no application

of the statute[s] could be constitutional.” Sabri v. United

States, 541 U.S. 600, 609 (2004). And absent a few extreme

cases not applicable here, this Court has declined to

“extend an invitation to bring overbreadth claims.” Id.

at 610. Because neither the Florida statute nor Texas

statute are overbroad and each law has instances where

it may be lawfully applied, the Platforms must pursue asapplied challenges. See, e.g., Sorrell v. IMS Health Inc.,

564 U.S. 552, 568 (2011) (“Having found that the plaintiff

could not raise a facial challenge, the Court remanded for

consideration of an as-applied challenge.”).

In addition, this Court has held state statutes

protecting First Amendment free speech carry greater

weight than an individual’s non-absolute property rights.

PruneYard, 447 U.S. at 83–87. Even in consideration of

emerging technologies, the Constitution permits laws

that prohibit censorship. See FCC v. Pacifica Found., 438

U.S. 726, 749–51 (1978) (finding Telecommunications Act

prohibiting FCC censorship facially constitutional). In

other areas, the state may constitutionally prevent private

businesses from acting. See, e.g., Heart of Atlanta Motel

19

v. United States, 379 U.S. 241, 257–58 (1964) (finding

the statute constitutional when it prohibited private

parties from discriminating based on race); and Spector

v. Norwegian Cruise Line Ltd., 545 U.S. 119, 148 (2005)

(Thomas, J., concurring) (finding the statute constitutional

when it prohibited a private party from discriminating

based on disability).

When considering the merits of the Platforms’

arguments, the Court should be leery of expanding

facial invalidity jurisprudence when there are clear

instances that the statutes at hand are constitutional.

First Amendment free speech is a fundamental principle

stemming from our Constitution, sometimes even at the

expense of other constitutional freedoms. H.B. 20 and

S.B. 7072 are no exception, particularly when they serve

to protect the speech of tens of millions social media users

by curbing the Platforms’ ability to limit protected speech.

The state statutes are not facially invalid.

20

CONCLUSION

State Actors do not enjoy First Amendment protections

bestowed upon private individuals. When Platforms join

with the government to carry out a common purpose that

results in censorship of protected speech, Platforms waive

their First Amendment protections and are subject to

constitutional constraints just like any other government

actor.

The facial challenges to the Texas and Florida statutes

cannot succeed because each law has clear applications

in valid contexts and does not chill protected speech. If

the Platforms want to challenge these laws, they must

bring as-applied challenges. The Court should decline

the Platforms’ invitation to expand the use of facial

invalidation simply because the Platforms disagree with

the state laws at issue.

Respectfully submitted,

Harmeet K. Dhillon

Mark Trammell

Josh Dixon

Eric Sell

Center For A merican

Liberty

1311 South Main Street,

Suite 207

Mount Airy, MD 21771

Randall W. Miller

Counsel of Record

Munsch Hardt Kopf

& Harr, PC

500 North Akard Street,

Suite 4000

Dallas, TX 75201

(214) 855-7500

rwmiller@munsch.com

Counsel for Amicus Curiae

January 23, 2024