Petition for Writ of Certiorari — NetChoice, LLC, dba NetChoice, et al., Petitioners v. Ken Paxton, Attorney General of Texas
Supreme Court briefDec 15, 2022
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No.
In the Supreme Court of the United States
NETCHOICE, LLC D/B/A NETCHOICE; AND
COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION
D/B/A CCIA, PETITIONERS
v.
KEN PAXTON, IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF TEXAS
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Paul D. Clement
Erin E. Murphy
James Y. Xi*
CLEMENT & MURPHY,
PLLC
706 Duke Street
Alexandria, VA 22314
Scott A. Keller
Counsel of Record
Steven P. Lehotsky
Jeremy Evan Maltz
LEHOTSKY KELLER LLP
200 Massachusetts Ave., NW
Washington, DC 20001
(512) 693-8350
Kyle D. Hawkins
LEHOTSKY KELLER LLP scott@lehotskykeller.com
919 Congress Ave.
Katherine C. Yarger
Austin, TX 78701
LEHOTSKY KELLER LLP
700 Colorado Blvd., #407
*Supervised by principals of
the firm who are members of Denver, CO 80206
the Virginia bar
Counsel for Petitioners
QUESTION PRESENTED
Throughout our Nation’s history, the First Amendment’s freedoms of speech and press have protected private entities’ rights to choose whether and how to publish
and disseminate speech generated by others. E.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921,
1930 (2019); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 570, 575 (1995); Miami
Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974).
Over two decades ago, this Court held there is “no basis for qualifying the level of First Amendment scrutiny
that should be applied to” speech disseminated on “the Internet.” Reno v. ACLU, 521 U.S. 844, 870 (1997). Today,
many Internet websites publish and disseminate curated
collections of expression generated by themselves and
others.
Nevertheless, the State of Texas—much like Florida
before it—has enacted a viewpoint-, content-, and
speaker-based law (House Bill 20 or “HB20”) targeting
certain disfavored “social media” websites. HB20 Section 7 prohibits these websites from making editorial
choices based on “viewpoint.” And HB20 Section 2 imposes on these websites burdensome operational and disclosure requirements, chilling their editorial choices. This
Court has already ensured once that Respondent cannot
enforce this law against Petitioners’ members. NetChoice,
LLC v. Paxton, 142 S. Ct. 1715, 1715-16 (2022).
The question presented is whether the First Amendment prohibits viewpoint-, content-, or speaker-based
laws restricting select websites from engaging in editorial
choices about whether, and how, to publish and disseminate speech—or otherwise burdening those editorial
choices through onerous operational and disclosure requirements.
(i)
ii
PARTIES TO THE PROCEEDING
Petitioners were the plaintiffs-appellees in the court of
appeals. They are NetChoice, LLC d/b/a NetChoice; and
Computer & Communications Industry Association d/b/a
CCIA.
Respondent was the defendant-appellant in the court
of appeals. Respondent is Ken Paxton in his official capacity as Attorney General of Texas.
iii
CORPORATE DISCLOSURE STATEMENT
1. Petitioner NetChoice is a 501(c)(6) District of Columbia organization. It has no parent corporation and no
publicly held corporation owns 10% or more of its stock.
2. Petitioner CCIA is a 501(c)(6) non-stock Virginia
corporation. It has no parent corporation and no publicly
held corporation owns 10% or more of its stock.
RELATED PROCEEDINGS
1. This case arises out of trial court proceedings in
NetChoice, LLC v. Paxton, No. 1:21-cv-00840 (W.D. Tex.),
before the Western District of Texas, Austin Division. On
December 1, 2021, the district court preliminarily enjoined Respondent’s enforcement of Sections 2 and 7 of
Texas House Bill 20, as enacted September 9, 2021.
2. Respondent appealed the order granting the preliminary injunction to the United States Court of Appeals
for the Fifth Circuit and moved for a stay of the preliminary injunction pending appeal in NetChoice, L.L.C. v.
Paxton, No. 21-51178 (5th Cir.).
3. On May 11, 2022, the Fifth Circuit stayed the preliminary injunction pending appeal.
4. Petitioners applied for an emergency vacatur of the
Fifth Circuit’s stay in this Court.
5. This Court vacated the Fifth Circuit’s stay of the
preliminary injunction on May 31, 2022, in NetChoice,
LLC v. Paxton, 142 S. Ct. 1715 (2022).
6. On September 16, 2022, the Fifth Circuit issued its
opinion and judgment reversing the district court’s preliminary injunction. NetChoice, L.L.C. v. Paxton, 49 F.4th
439 (5th Cir. 2022).
7. On October 12, 2022, the Fifth Circuit granted Petitioners’ unopposed motion to stay the appellate mandate
pending certiorari.
iv
TABLE OF CONTENTS
Introduction....................................................................... 1
Opinions Below .................................................................. 2
Jurisdiction ........................................................................ 2
Constitutional and Statutory Provisions Involved ......... 3
Statement .......................................................................... 3
Reasons for Granting the Petition................................... 8
I. The Fifth Circuit’s decision below expressly
split with the Eleventh Circuit on whether
government can regulate websites’ editorial
discretion, while exacerbating confusion over
when government can compel disclosures
under Zauderer. .................................................... 8
II. The Fifth Circuit’s decision below erroneously
interpreted the First Amendment on issues of
exceptional national importance. ....................... 12
A. HB20 Section 7’s prohibition on editorial
discretion violates the First Amendment. ... 12
1. This Court’s precedent establishes that
private
websites
have
First
Amendment rights to make editorial
choices over whether and how they
disseminate speech. ................................. 12
2. The Fifth Circuit majority misapplied
key precedent. .......................................... 16
a. The majority rejected the First
Amendment’s protection of private
entities’ editorial choices over
whether and how they disseminate
speech. ................................................. 17
b. The majority erred by concluding
that HB20 is not subject to strict
scrutiny. .............................................. 20
v
c. The majority erred by concluding
that
HB20
would
satisfy
intermediate scrutiny. ....................... 23
d. The majority’s “original public
meaning” analysis lacks historical
evidence and contradicts this
Court’s precedent. .............................. 27
B. The operational and disclosure provisions
of HB20 Section 2 likewise violate the First
Amendment. ................................................... 28
1. Section 2 triggers and fails strict
scrutiny. .................................................... 28
2. Zauderer’s
test
for
evaluating
disclosures related to misleading
commercial advertisements does not
apply here. ................................................ 29
3. Section 2 fails Zauderer’s test, even if it
applies. ...................................................... 32
III. The First Amendment issues implicated by
the Fifth Circuit’s split with the Eleventh
Circuit are important questions the Court
should resolve now. ............................................. 35
Conclusion ....................................................................... 36
vi
TABLE OF AUTHORITIES
Page(s)
Cases
Allstate Ins. Co. v. Abbott,
495 F.3d 151 (5th Cir. 2007) ........................................ 11
Am. Beverage Ass’n v. City & Cnty. of San
Francisco,
916 F.3d 749 (9th Cir. 2019) ........................................ 30
Am. Hosp. Ass’n v. Azar,
983 F.3d 528 (D.C. Cir. 2020) ................................ 11, 12
Am. Meat Inst. (AMI) v. U.S. Dep’t of
Agric.,
760 F.3d 18 (D.C. Cir. 2014) .................................. 11, 31
Ams. for Prosperity (AFP) v. Bonta,
141 S. Ct. 2373 (2021) ....................................... 20, 29, 35
Ariz. Free Enter. Club’s Freedom Club
PAC v. Bennett,
564 U.S. 721 (2011) ....................................................... 23
Ark. Educ. Tel. Comm’n v. Forbes,
523 U.S. 666 (1998) ....................................................... 15
Ark. Writers’ Project, Inc. v. Ragland,
481 U.S. 221 (1987) ....................................................... 22
Bartnicki v. Vopper,
532 U.S. 514 (2001) ....................................................... 15
vii
Borgner v. Fla. Bd. of Dentistry,
537 U.S. 1080 (2002) ..................................................... 10
Brown v. Entm’t Merchs. Ass’n,
564 U.S. 786 (2011) ........................................... 15, 27, 32
Buckley v. Valeo,
424 U.S. 1 (1976) (per curiam)......................... 23, 28, 29
Cal. Chamber of Com. v. Council for Educ.
& Rsch. on Toxics,
29 F.4th 468 (9th Cir. 2022) ................................... 12, 34
Cent. Ill. Light Co. v. Citizens Util. Bd.,
827 F.2d 1169 (7th Cir. 1987) ...................................... 11
Chaplinsky v. New Hampshire,
315 U.S. 568 (1942) ....................................................... 28
Citizens United v. FEC,
558 U.S. 310 (2010) ................................................. 21, 22
City of Boerne v. Flores,
521 U.S. 507 (1997) ....................................................... 20
City of Cincinnati v. Discovery Network,
Inc.,
507 U.S. 410 (1993) ....................................................... 30
City of L.A. v. Patel,
576 U.S. 409 (2015) ....................................................... 36
City of Lakewood v. Plain Dealer Publ’g
Co.,
486 U.S. 750 (1988) ....................................................... 15
viii
Consol. Edison Co. of New York, Inc. v.
Pub. Serv. Comm’n of New York,
447 U.S. 530 (1980) ....................................................... 26
CTIA – The Wireless Ass’n v. City of
Berkeley,
873 F.3d 774 (9th Cir. 2017) ........................................ 10
CTIA – The Wireless Ass’n v. City of
Berkeley,
928 F.3d 832 (9th Cir. 2019) ........................................ 11
Davison v. Facebook, Inc.,
370 F. Supp. 3d 621 (E.D. Va. 2019) ............................. 9
Denver Area Educ. Telecomms.
Consortium, Inc. v. FCC,
518 U.S. 727 (1996) ........................................... 15, 24, 27
Discount Tobacco City & Lottery, Inc. v.
United States,
674 F.3d 509 (6th Cir. 2012) .................................. 11, 12
Dwyer v. Cappell,
762 F.3d 275 (3d Cir. 2014) .......................................... 11
Entm’t Software Ass’n (ESA) v.
Blagojevich,
469 F.3d 641 (7th Cir. 2006) .................................. 11, 12
e-ventures Worldwide, LLC v. Google, Inc.,
2017 WL 2210029 (M.D. Fla. Feb. 8,
2017) ................................................................................. 9
Green v. Miss United States of Am., LLC,
52 F.4th 773 (9th Cir. 2022) ......................................... 14
ix
Grosjean v. Am. Press Co.,
297 U.S. 233 (1936) ....................................................... 22
Herbert v. Lando,
441 U.S. 153 (1979) ................................................. 28, 29
Hollingsworth v. Perry,
558 U.S. 183 (2010) ......................................................... 7
Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Boston,
515 U.S. 557 (1995) ........................ i, 3, 13, 14, 19, 23, 30
In re R.M.J.,
455 U.S. 191 (1982) ....................................................... 30
Isaac v. Twitter,
557 F. Supp. 3d 1251 (S.D. Fla. 2021) .......................... 9
Janus v. Am. Fed’n of State, Cnty., &
Mun. Emps., Council 31,
138 S. Ct. 2448 (2018) ................................................... 25
La’Tiejira v. Facebook, Inc.,
272 F. Supp. 3d 981 (S.D. Tex. 2017) ............................ 9
Lovell v. City of Griffin,
303 U.S. 444 (1938) ....................................................... 27
Manhattan Cmty. Access Corp. v. Halleck,
139 S. Ct. 1921 (2019) ...................................... i, 2, 15, 18
Masterpiece Cakeshop, Ltd. v. Colo. Civil
Rights Comm’n,
138 S. Ct. 1719 (2018) ................................................... 19
x
McCullen v. Coakley,
573 U.S. 464 (2014) ................................................. 23, 25
Miami Herald Publ’g Co. v. Tornillo,
418 U.S. 241 (1974) ............................ i, 13, 17, 24, 26, 28
Milavetz, Gallop & Milavetz, P.A. v.
United States,
559 U.S. 229 (2010) ................................................. 29, 30
Minneapolis Star & Tribune Co. v. Minn.
Comm’r of Revenue,
460 U.S. 575 (1983) ....................................................... 22
Nat’l Ass’n of Mfrs. (NAM) v. SEC,
800 F.3d 518 (D.C. Cir. 2015) .......................... 10, 11, 30
Nat’l Elec. Mfrs. Ass’n (NEMA) v. Sorrell,
272 F.3d 104 (2d Cir. 2011) .......................................... 11
Nat’l Inst. Fam. and Life Advocs.
(NIFLA) v. Becerra,
138 S. Ct. 2361 (2018) ....................................... 21, 28, 30
NetChoice, L.L.C. v. Paxton,
49 F.4th 439 (5th Cir. 2022) ...................................... iii, 2
NetChoice, LLC v. Att’y Gen., Fla.,
34 F.4th 1196 (11th Cir. 2022)
....................... 1, 3, 4, 10, 13, 14, 16, 18, 19, 23, 26, 27, 32
NetChoice, LLC v. Moody,
546 F. Supp. 3d 1082 (N.D. Fla. 2021)........................ 17
NetChoice, LLC v. Paxton,
573 F. Supp. 3d 1092 (W.D. Tex. 2021) ........................ 2
xi
NetChoice, LLC v. Paxton,
142 S. Ct. 1715 (2022) ............................... i, iii, 1, 7, 8, 35
O’Handley v. Padilla,
2022 WL 93625 (N.D. Cal. Jan. 10,
2022) ................................................................................. 9
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) ................................................... 15
PG&E v. Pub. Util. Comm’n of Cal.,
475 U.S. 1 (1986) ................................... 14, 18, 20, 26, 27
Pharm. Care Mgmt. Ass’n v. Rowe,
429 F.3d 294 (1st Cir. 2005) ......................................... 11
PruneYard Shopping Ctr. v. Robins,
447 U.S. 74 (1980) ......................................................... 19
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ....................................................... 23
R.J. Reynolds Tobacco Co. v. FDA,
696 F.3d 1205 (D.C. Cir. 2012) .................................... 12
Recht v. Morrisey,
32 F.4th 398 (4th Cir. 2022) ......................................... 11
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ....................................................... 21
Reno v. ACLU,
521 U.S. 844 (1997) .................................... i, 3, 16, 17, 24
Riley v. Nat’l Fed’n of the Blind of N.
Carolina, Inc.,
487 U.S. 781 (1988) ................................................. 14, 22
xii
Rumsfeld v. F. Acad. Inst. Rts., Inc.
(FAIR),
547 U.S. 47 (2006) ................................................... 19, 20
Smith v. California,
361 U.S. 147 (1959) ....................................................... 15
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) ....................................... 3, 15, 16, 21
Stuart v. Camnitz,
774 F.3d 238 (4th Cir. 2014) ........................................ 11
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) ........................................... 14, 24, 29
U.S. Telecomm. Ass’n v. FCC,
855 F.3d 381 (D.C. Cir. 2017) ........................................ 2
United States v. Playboy Entm’t Grp.,
Inc.,
529 U.S. 803 (2000) ....................................................... 28
United States v. Salerno,
481 U.S. 739 (1987) ....................................................... 36
United States v. Stevens,
559 U.S. 460 (2010) ................................................. 35, 36
United States v. United Foods,
533 U.S. 405 (2001) ....................................................... 30
United States v. Wenger,
427 F.3d 840 (10th Cir. 2005) ...................................... 11
xiii
W. Airlines, Inc. v. Int’l Bhd. of Teamsters
& Air Transp. Emps.,
480 U.S. 1301 (1987) ....................................................... 7
W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ....................................................... 27
Wash. Post v. McManus,
944 F.3d 506 (4th Cir. 2019) ........................................ 10
Wooley v. Maynard,
430 U.S. 705 (1977) ....................................................... 27
Zauderer v. Office of Disciplinary Counsel
of Supreme Court,
471 U.S. 626 (1985) ....................................... 9, 29, 30, 31
Statutes
28 U.S.C. § 1254 .................................................................... 2
47 U.S.C. § 230 .................................................................... 20
Tex. Bus. & Com. Code § 120.001 ................................... 1, 6
Tex. Bus. & Com. Code § 120.002 ....................................... 5
Tex. Bus. & Com. Code § 120.051 ................................. 6, 34
Tex. Bus. & Com. Code § 120.052 ........................... 6, 32, 34
Tex. Bus. & Com. Code § 120.053 ................................. 7, 33
Tex. Bus. & Com. Code § 120.101 ........................... 6, 30, 32
Tex. Bus. & Com. Code § 120.102 ........................... 6, 30, 32
xiv
Tex. Bus. & Com. Code § 120.103 ........................... 6, 30, 32
Tex. Bus. & Com. Code § 120.104 ........................... 6, 30, 32
Tex. Civ. Prac. & Rem. Code § 143A.001 ....................... 1, 6
Tex. Civ. Prac. & Rem. Code § 143A.002 ..................... 6, 22
Tex. Civ. Prac. & Rem. Code § 143A.004 ........................... 6
Tex. Civ. Prac. & Rem. Code § 143A.006 ..................... 6, 23
Other Authorities
Appellees’ Br., NetChoice v. Paxton, 49
F.4th 439 (5th Cir. 2022) (No. 2151178), 2022 WL 1046833 (Apr. 1, 2022) .................... 36
Br. of States as Amici Curiae, Green v.
Miss United States of Am., LLC, 52
F.4th 773 (9th Cir. 2022) (No. 2135228), 2021 WL 5173256 (Oct. 29,
2021) ............................................................................... 14
Br. of the State of Texas as Amicus Curiae,
McDonald v. Longley, 4 F.4th 229 (5th
Cir. 2021) (No. 20-50448), 2020 WL
4026192 (July 7, 2020) ................................................. 25
Cond. Cross Pet., NetChoice v. Moody
(U.S. No. 22-393) (Oct. 24, 2022) ............................. 2, 35
Fla. Pet. for Cert., Moody v. NetChoice
(U.S. No. 22-277) (Sept. 21, 2022) ................................. 2
NetChoice, By the Numbers,
https://bit.ly/3Gn54Hj .................................................. 17
xv
Order, NetChoice, L.L.C. v. Paxton,
No. 21-51178 (5th Cir. May 11, 2022) ........................... 7
Resp. Br., Moody v. NetChoice (U.S.
No. 22-277) (Oct. 24, 2022) ....................................... 2, 35
States’ Letter to Vanessa Countryman,
Secretary, SEC (Aug. 16, 2022),
https://bit.ly/3SnE1BO ................................................ 31
INTRODUCTION
Until the Fifth Circuit’s decision below upheld Texas
House Bill 20 (“HB20”), no judicial opinion in our Nation’s
history had held that the First Amendment permits government to compel websites to publish and disseminate
speech against their will.1 If allowed to stand, the Fifth
Circuit’s opinion will upend settled First Amendment jurisprudence and threaten to transform speech on the Internet as we know it today. This Court has already prevented Respondent from enforcing HB20 against Petitioners’ members. NetChoice, LLC v. Paxton, 142 S. Ct.
1715, 1715-16 (2022). It should do so again.
HB20 infringes the core First Amendment rights of
Petitioners’ members by denying them editorial control
over their own websites, while forcing them to publish
speech they do not wish to disseminate. As the Eleventh
Circuit explained when invalidating Florida’s similar law,
“social-media companies . . . are ‘private actors’ whose
rights the First Amendment protects, . . . their so-called
‘content-moderation’ decisions constitute protected exercises of editorial judgment”—and any laws “that restrict
large platforms’ ability to engage in content moderation
unconstitutionally burden that prerogative.” NetChoice,
LLC v. Att’y Gen., Fla., 34 F.4th 1196, 1203 (11th Cir.
2022) (quoting Manhattan Cmty. Access Corp. v. Halleck,
139 S. Ct. 1921, 1926 (2019)) [hereinafter “Moody”].
HB20 regulates “social media platforms,” which generally encompasses “an Internet website or application that is open to the public,
allows a user to create an account, and enables users to communicate
with other users for the primary purpose of posting information, comments, messages, or images.” Tex. Bus. & Com. Code § 120.001(1);
Tex. Civ. Prac. & Rem. Code § 143A.001(4). This Petition will refer to
HB20-regulated entities as “covered websites” or just “websites.”
1
(1)
2
The Fifth Circuit expressly “disagree[d] with the
Eleventh Circuit’s reasoning” on these important First
Amendment issues. Pet.App.99a. In seeking review of
that Eleventh Circuit decision, the Florida Attorney General recognized that certiorari review is warranted. Fla.
Pet. for Cert. 1, Moody v. NetChoice (U.S. No. 22-277)
(Sept. 21, 2022). Petitioners agreed and thus acquiesced
to certiorari review in Moody while cross-petitioning.
Cond. Cross Pet. 3, NetChoice v. Moody (U.S. No. 22-393)
(Oct. 24, 2022); Resp. Br. 3, Moody v. NetChoice (U.S.
No. 22-277) (Oct. 24, 2022). This Court therefore should
grant both certiorari petitions in Moody, hold this case,
rule for NetChoice and CCIA in Moody, and then grant,
vacate, and remand this case. Alternatively, this Court
could grant certiorari in both this case and Moody.
At bottom, government “may not . . . tell Twitter or
YouTube what videos to post; or tell Facebook or Google
what content to favor.” U.S. Telecomm. Ass’n v. FCC, 855
F.3d 381, 435 (D.C. Cir. 2017) (Kavanaugh, J., dissenting
from denial of reh’g en banc). A unanimous panel of the
Eleventh Circuit embraced this legal conclusion; a divided
panel of the Fifth Circuit rejected it. This split cries out
for review.
OPINIONS BELOW
The opinion of the court of appeals (Pet.App.1a-142a)
is reported at 49 F.4th 439. The opinion of the district
court (Pet.App.143a-85a) is reported at 573 F. Supp. 3d
1092.
JURISDICTION
The court of appeals entered its judgment on September 16, 2022. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254.
3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States Constitution is reproduced at Pet.App.186a. HB20 is reproduced
at Pet.App.187a-206a.
STATEMENT
A. Social media websites “publish” speech. Reno v.
ACLU, 521 U.S. 844, 853 (1997). And they “disseminate”
speech. Sorrell v. IMS Health Inc., 564 U.S. 552, 570
(2011).
This disseminated speech is often “written text, photos, and videos” that are “created by third parties.”
Moody, 34 F.4th at 1203. But everything readers and
viewers see on covered websites is arranged according to
the websites’ distinctive editorial policies. R.1771-1825
(websites’ policies).2 Websites “invest significant time and
resources into editing and organizing”—that is, “curating”—“users’ posts into collections of content that they
then disseminate to others.” Moody, 34 F.4th at 1204-05.
“By engaging in this” editorial discretion, websites “develop particular market niches, foster different sorts of
online communities, and promote various values and viewpoints.” Id. at 1205; see Pet.App.165a. Websites’ editorial
efforts convey that the speech they choose to disseminate
is “worthy of presentation.” Hurley v. Irish-Am. Gay,
Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 570, 575
(1995).
Websites’ “editorial discretion” encompasses a broad
range of choices affecting “which users’ speech the viewer
will see, and in what order, during any given visit to the
2
“R.__” refers to the Fifth Circuit’s record on appeal.
4
site.” Moody, 34 F.4th at 1203; see R.213; R.1138-39;
R.1227; R.1309; R.1365-66. At the outset, websites choose
who can access their websites. Once eligible viewers have
access to those websites, they must comply with the websites’ policies. Moody, 34 F.4th at 1203; see R.359; R.383;
R.1664-1721. Websites therefore will “remove[] posts that
violate [their] terms of service or community standards—
for instance, those containing hate speech, pornography,
or violent content.” Moody, 34 F.4th at 1204; see
Pet.App.169a. And websites determine how policy-compliant expression gets displayed—“arrang[ing] available
content by choosing how to prioritize and display posts.”
Moody, 34 F.4th at 1204 (citation omitted); see
Pet.App.168a; R.198; R.211.
Covered websites thus do not disseminate all speech
or treat all speech equally. For example, on websites that
allow viewers to “follow” particular accounts, viewers’
“feed[s]” “won’t just consist of every single post created
by every single one of those [accounts] arranged in reverse-chronological order.” Moody, 34 F.4th at 1204. Instead, viewers “see[] a curated and edited compilation of
content,” in addition to advertisements and other expression the websites recommend. Id.; see Pet.App.163a, 165a;
R.176; R.184-87; R.378-79.
Covered websites also generate expression by
“add[ing] addenda or disclaimers to certain posts (say,
warning of misinformation or mature content)[] or publish[ing] [their] own posts.” Moody, 34 F.4th at 1204; see
Pet.App.168a; R.198-99. And some websites support certain speech by sharing advertising revenue with certain
users for policy-compliant expression. R.199-200.
Without these editorial choices, websites would offer
experiences overrun with spam, bullying, and other
5
harmful content. For example, during six months in 2018,
Facebook, Google, and Twitter took action on over 5 billion accounts or submissions—“including 3 billion cases of
spam, 57 million cases of pornography, 17 million cases of
content regarding child safety, and 12 million cases of extremism, hate speech, and terrorist speech.”
Pet.App.173a. Understandably, when covered websites
have failed to remove such expression, they have lost the
goodwill of their viewers and advertisers—and faced criticism from many others. R.176; R.184-87; R.233.
In the recent past, one of the measurable ways this lost
goodwill manifested was viewer and advertiser boycotts.
YouTube in 2017 “lost millions of dollars in advertising
revenue after” companies “took down their ads after seeing them distributed next to videos containing extremist
content and hate speech”—prior to YouTube upgrading
its policy enforcement. R.188-89. And Facebook in 2020
“saw a nearly identical response” after advertiser concerns about “hate speech and misinformation.” R.189; see
R.216; R.1135-37; R.1169.
B. The State of Texas enacted HB20 to target certain
disfavored websites based on disagreements with their
editorial policies and enforcement. Pet.App.144a-45a,
165a-66a, 182a; R.33-35 (collecting statements from leading legislative proponents). The Governor’s official signing statement proclaimed that HB20 targets websites to
protect “conservative speech”: “It is now law that conservative viewpoints in Texas cannot be banned on social
media.” R.36.
HB20’s key coverage definition of “social media platform” is content- and speaker-based. It covers only those
social media websites with 50 million or more monthly active U.S. users. Tex. Bus. & Com. Code § 120.002(b); Tex.
6
Civ. Prac. & Rem. Code § 143A.004(c). At a minimum,
HB20 covers Petitioners’ members Google (which owns
YouTube), Meta (which owns Facebook and Instagram),
Pinterest, TikTok, Twitter, and Vimeo. Pet.App.145a. But
HB20 expressly excludes certain other Internet websites
based on content, namely websites that “consist[] primarily of news, sports, [and] entertainment.” Tex. Bus. &
Com. Code § 120.001(1)(C).
HB20 Section 7 compels speech dissemination by prohibiting websites from engaging in editorial choices based
on the “viewpoint” of the expression or user. Tex. Civ.
Prac. & Rem. Code §§ 143A.001(1), .002(a). It includes two
facially content-based exceptions for (1) incitement and
threats against limited protected classes and (2) referrals
from particular organizations. Id. § 143A.006(a)(2)-(3).
Section 7 even appears to force websites to continue operating in Texas. Id. § 143A.002(a)(3).
HB20 Section 2 imposes onerous operational and disclosure requirements similarly aimed at chilling websites’
editorial discretion. First, websites must adopt noticecomplaint-appeal procedures for users to challenge specific editorial decisions. Tex. Bus. & Com. Code
§§ 120.101-104. Second, websites must provide unbounded
“disclosures” about their “content management, data
management, and business practices.” Id. § 120.051(a).
Third, they must “publish an acceptable use policy,” that,
among other things, must “explain the steps the social media platform will take to ensure content complies with the
[website’s] policy.” Id. § 120.052. Fourth, they must publish a “biannual transparency report,” requiring disclosure of large swaths of information about each action websites take to enforce their policies across billions of pieces
of expression—including “a description of each tool,
7
practice, action, or technique used in enforcing the acceptable use policy.” Id. § 120.053.
In total, HB20 would wreak havoc by requiring transformational change to websites’ operations. As Facebook’s declarant testified, even if given 10 years, “I think
that we would not be able to comply in a meaningful way
with these issues without undoing the whole way that we
do business.” R.1175. He estimated that, because Facebook “spent billions of dollars” on developing its editorialdiscretion tools since 2016, Facebook would need to “invest nearly as much to be able to comply with all that
would undo our systems in such a fundamental way.”
R.1160.
C. After four weeks of discovery, including multiple
depositions, the district court preliminarily enjoined Respondent’s enforcement of HB20. Pet.App.149a, 185a. Respondent appealed and moved for an opposed stay in the
Fifth Circuit. A three-judge motions panel carried the
stay motion with the case. Two days after oral argument,
the merits panel granted Respondent’s five-month-old
stay motion by a 2-1 vote. Order, NetChoice, L.L.C. v.
Paxton, No. 21-51178 (5th Cir. May 11, 2022).
This Court vacated the Fifth Circuit’s stay order. Paxton, 142 S. Ct. at 1715-16. Though this Court’s majority
did not issue a written decision, it necessarily determined
that there was a reasonable probability of granting review, a fair prospect of reversal on the merits, and a likelihood of irreparable injury to Petitioners’ members. E.g.,
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010); W. Airlines, Inc. v. Int’l Bhd. of Teamsters & Air Transp.
Emps., 480 U.S. 1301, 1305 (1987) (O’Connor, J., in chambers).
8
Four months later, the Fifth Circuit merits panel issued an opinion reversing the district court’s preliminary
injunction. On HB20 Section 7, the panel majority expressly “disagree[d] with the Eleventh Circuit’s reasoning” in Moody on two “key issues”: (1) whether this
Court’s precedent protects private entities’ editorial discretion; and (2) whether the websites here exercise such
editorial discretion. Pet.App.99a, 102a. On HB20 Section 2, the entire panel disagreed with the Eleventh Circuit’s invalidation of a similar burdensome operational
and disclosure provision. Pet.App.91-99a.
Judge Southwick dissented from the Fifth Circuit majority’s holdings on Section 7, finding it an “unconstitutional infringement on the Plaintiffs’ rights to edit or remove, after the fact, speech that appears on their private
Platforms.” Pet.App.142a. The Fifth Circuit granted Petitioners’ unopposed motion to stay the appellate mandate
pending certiorari.
REASONS FOR GRANTING THE PETITION
I. The Fifth Circuit’s decision below expressly split
with the Eleventh Circuit on whether government
can regulate websites’ editorial discretion, while
exacerbating confusion over when government can
compel disclosures under Zauderer.
When this Court vacated the Fifth Circuit’s stay order
in May, three of the Justices dissenting from that order
recognized this case “will plainly merit” the Court’s review. Paxton, 142 S. Ct. at 1716 (Alito, J., dissenting). Review is even more appropriate now that the Fifth Circuit
expressly split with the Eleventh Circuit on many First
Amendment issues of exceptional national importance.
9
A. HB20 Section 7’s prohibition on viewpoint-based
editorial discretion. The Fifth Circuit “disagree[d] with
the Eleventh Circuit’s reasoning,” holding that the First
Amendment does not protect social media websites’ editorial choices about what speech they disseminate.
Pet.App.99a; see Pet.App.118a (Southwick, J., dissenting).
Moreover, the Fifth Circuit disagreed with the consensus
of other lower courts.3 This conflict implicates several
First Amendment issues, as discussed below (at pp.12-28).
And the Florida Attorney General agrees this Court
should review these issues. Supra p.2.
B. HB20 Section 2’s operational and disclosure provisions. The Fifth Circuit’s approval of burdensome operational and disclosure provisions creates a square split with
the Eleventh Circuit—and further splits with the Fourth
Circuit. Furthermore, both the Fifth and Eleventh Circuits’ analyses implicate multiple areas of widespread
confusion among the lower courts over the standard for
compelled commercial disclosures under Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S.
626 (1985). As articulated by this Court, Zauderer provides a limited exception to normal heightened First
Amendment scrutiny for compelled disclosures of “purely
factual and uncontroversial information” to correct misleading “commercial advertising”—provided that the
E.g., O’Handley v. Padilla, 2022 WL 93625, at *14-15 (N.D. Cal. Jan.
10, 2022), appeal docketed, No. 22-15071 (9th Cir. Jan. 18, 2022); Isaac
v. Twitter, 557 F. Supp. 3d 1251, 1261 (S.D. Fla. 2021); Davison v.
Facebook, Inc., 370 F. Supp. 3d 621, 629 (E.D. Va. 2019), aff’d, 774 F.
App’x 162 (4th Cir. 2019); e-ventures Worldwide, LLC v. Google, Inc.,
2017 WL 2210029, at *4 (M.D. Fla. Feb. 8, 2017); La’Tiejira v. Facebook, Inc., 272 F. Supp. 3d 981, 991 (S.D. Tex. 2017).
3
10
disclosures are “not unjustified or unduly burdensome.”
Id. at 651.
The Eleventh Circuit held that Florida’s notice provision requiring covered websites to provide “detailed justification for every content-moderation action” was “unduly burdensome” and “likely to chill platforms’ protected
speech.” Moody, 34 F.4th at 1230 (cleaned up).
Analogously, the Fourth Circuit held that Maryland’s
political-advertisement disclosure requirements for
“online platforms” “intru[ded] into the function of editors”
and unconstitutionally compelled speech. Wash. Post v.
McManus, 944 F.3d 506, 518-20 (4th Cir. 2019).
By contrast, the Fifth Circuit upheld provisions (described above at pp.6-7) requiring covered websites to
provide users with detailed justifications for every editorial action. Pet.App.91a-99a. Petitioners provided unrebutted evidence that implementing many of the provisions
would entail significant costs, if it were possible at all. See
Pet.App.172a; R.214-15; R.227-28. In response, the Fifth
Circuit held that “technical, economic, or operational burdens” are not relevant under Zauderer. Pet.App.95a.
The Fifth and Eleventh Circuits’ application of the
Zauderer standard raises multiple questions that have divided lower courts. Indeed, the D.C. Circuit has acknowledged a “conflict in the circuits regarding [Zauderer’s]
reach.” Nat’l Ass’n of Mfrs. (NAM) v. SEC, 800 F.3d 518,
524 (D.C. Cir. 2015) (collecting cases); see also Borgner v.
Fla. Bd. of Dentistry, 537 U.S. 1080, 1080 (2002) (Thomas,
J., dissenting from denial of certiorari); CTIA – The Wireless Ass’n v. City of Berkeley, 873 F.3d 774, 776 & n.1 (9th
Cir. 2017) (Wardlaw, J., dissenting from denial of reh’g en
banc).
11
These decisions amplify confusion at every level of the
Zauderer analysis. The threshold question is whether
Zauderer applies to government-compelled speech unrelated to “commercial advertising.”4 Next, courts disagree
about whether government may compel speech for reasons other than “preventing deception of consumers.”5
Assuming that government may permissibly impose some
kind of disclosure, courts disagree about what makes a
disclosure permissibly “factual” and “uncontroversial.”6
They similarly disagree about whether financial burdens
and litigation risk can make a disclosure “unduly
Compare NAM, 800 F.3d at 523 (“[T]he Supreme Court has refused
to apply Zauderer when the case before it did not involve voluntary
commercial advertising.”), with Am. Hosp. Ass’n v. Azar, 983 F.3d
528, 541 (D.C. Cir. 2020); CTIA – The Wireless Ass’n v. City of Berkeley, 928 F.3d 832, 843 (9th Cir. 2019) [hereinafter “CTIA II”]; Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 524
(6th Cir. 2012); Nat’l Elec. Mfrs. Ass’n (NEMA) v. Sorrell, 272 F.3d
104, 114 (2d Cir. 2011); United States v. Wenger, 427 F.3d 840, 850-51
(10th Cir. 2005).
5
Compare Recht v. Morrisey, 32 F.4th 398, 416 (4th Cir. 2022) (remedying consumer deception); Dwyer v. Cappell, 762 F.3d 275, 282 (3d
Cir. 2014); Allstate Ins. Co. v. Abbott, 495 F.3d 151, 166-68 (5th Cir.
2007); Cent. Ill. Light Co. v. Citizens Util. Bd., 827 F.2d 1169, 1173
(7th Cir. 1987), with CTIA II, 928 F.3d at 844 (non-deception interest); Am. Meat Inst. (AMI) v. U.S. Dep’t of Agric., 760 F.3d 18, 27
(D.C. Cir. 2014); Discount Tobacco, 674 F.3d at 556; Wenger, 427 F.3d
at 844, 849-50; Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 310
n.8 (1st Cir. 2005); NEMA, 272 F.3d at 113-14.
6
Compare AMI, 760 F.3d at 27 (Zauderer requires more than “simple
factual accuracy”), with Stuart v. Camnitz, 774 F.3d 238, 246 (4th Cir.
2014); Entm’t Software Ass’n (ESA) v. Blagojevich, 469 F.3d 641, 653
(7th Cir. 2006).
4
12
burdensome.”7 Finally, courts disagree as to what standard of review applies to compelled speech if Zauderer
does not.8
II. The Fifth Circuit’s decision below erroneously
interpreted the First Amendment on issues of
exceptional national importance.
The Fifth Circuit erred in upholding HB20 Section 7’s
prohibition on editorial discretion and HB20 Section 2’s
burdensome operational and disclosure provisions.
A. HB20 Section 7’s prohibition on editorial
discretion violates the First Amendment.
1. This Court’s precedent establishes that
private websites have First Amendment
rights to make editorial choices over
whether and how they disseminate speech.
Decades of this Court’s precedent recognizes that the
First Amendment protects private entities’ editorial
choices over whether, and how, to publish or disseminate
speech. This precedent applies to social media websites,
which both publish and disseminate speech.
a. A long line of this Court’s precedent establishes private entities’ rights to editorial discretion over which
speech they publish or disseminate.
Compare Cal. Chamber of Com. v. Council for Educ. & Rsch. on
Toxics, 29 F.4th 468, 479 (9th Cir. 2022) (economic costs like litigation
risk are relevant to burden), with Am. Hosp. Ass’n, 983 F.3d at 541
(only direct burdens on speech).
8
Compare Discount Tobacco, 674 F.3d at 554 (strict scrutiny), ESA,
469 F.3d at 651-52, with R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d
1205, 1216-17 (D.C. Cir. 2012) (intermediate scrutiny).
7
13
For example, “Miami Herald [‘Tornillo’], Pacific Gas
[‘PG&E’], and particularly Turner and Hurley establish
that a private entity’s decisions about whether, to what
extent, and in what manner to disseminate third-partycreated content to the public are” protected “editorial
judgments.” Moody, 34 F.4th at 1212. Websites “deliver[]
curated compilations of speech created . . . by others”:
Just as the parade organizer exercises editorial judgment when it refuses to include in
its lineup groups with whose messages it
disagrees, and just as a cable operator
might refuse to carry a channel that produces content it prefers not to disseminate,
social-media platforms regularly make
choices “not to propound a particular point
of view.”
Id. at 1213 (quoting Hurley, 515 U.S. at 575).
Tornillo held that the First Amendment protects “the
exercise of editorial control and judgment,” which includes “[t]he choice of material,” “the decisions made as
to limitations on the size and content,” and the “treatment
of public issues and public officials—whether fair or unfair.” Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241,
258 (1974); accord Pet.App.122a-24a (Southwick, J., dissenting). Tornillo thus invalidated a law requiring newspapers to publish political candidates’ responses to negative coverage. 418 U.S. at 258. This law violated “the First
Amendment because of its intrusion into the function of
editors”; any “compulsion to publish that which ‘reason
tells them should not be published’ is unconstitutional.”
Id. at 256.
This Court has extended Tornillo’s key insights beyond newspapers to any case involving the compelled
14
dissemination of speech. Riley v. Nat’l Fed’n of the Blind
of N. Carolina, Inc., 487 U.S. 781, 797 (1988); see Moody,
34 F.4th at 1211.
PG&E therefore held it unconstitutional for government to compel a public utility “to use its property [a
newsletter] as a vehicle for spreading a message with
which it disagree[d].” PG&E v. Pub. Util. Comm’n of Cal.,
475 U.S. 1, 17 (1986) (plurality op.).9
Hurley likewise acknowledged that Tornillo covers a
parade organizer’s decision to exclude certain expression
from the parade: “the presentation of an edited compilation of speech generated by other persons . . . fall[s]
squarely within the core of First Amendment security.”
515 U.S. at 570. Thus, the “selection of contingents to
make a parade is entitled to similar protection” as a newspaper’s editorial choices. Id.10
And Turner held that “by exercising editorial discretion over which stations or programs to include in [their]
repertoire,” cable operators “see[k] to communicate messages on a wide variety of topics and in a wide variety of
formats.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
636 (1994) (citation omitted).
All citations to PG&E are to the plurality opinion. See Hurley, 515
U.S. at 573, 575-76, 580 (treating the PG&E plurality opinion as the
case’s holding).
10
In reliance on Hurley, the lower courts and Respondent have recognized that the “interdependent dynamic between medium and message is well-established and well-protected” under the First Amendment. Green v. Miss United States of Am., LLC, 52 F.4th 773, 776
(9th Cir. 2022); accord Br. of States as Amici Curiae, Green, 52 F.4th
773 (No. 21-35228), 2021 WL 5173256, at *11 (Oct. 29, 2021) (the “Pageant’s message is inextricably bound up with who it allows on stage”);
id. at *12 (“the contenders are the communication”).
9
15
Many cases beyond Tornillo, PG&E, Hurley, and
Turner recognize that the First Amendment protects private entities’ right to editorial discretion. This Court has
long held that private entities have the right to “exercise
editorial discretion over . . . speech and speakers”—including when those entities “provide[] a forum for speech”
generated by others. Manhattan, 139 S. Ct. at 1930 (collecting cases); e.g., Brown v. Entm’t Merchs. Ass’n, 564
U.S. 786, 792 n.1 (2011) (“distributing”); Sorrell, 564 U.S.
at 570 (“disseminat[e]”); Bartnicki v. Vopper, 532 U.S.
514, 527 (2001) (“disclosing and publishing information”)
(cleaned up); City of Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750, 768 (1988) (“Liberty of circulating is as essential to freedom of expression as liberty of publishing”)
(cleaned up); Smith v. California, 361 U.S. 147, 150 (1959)
(“publication and dissemination”).11
The “editorial function itself is an aspect of ‘speech’”
protected by the First Amendment. Denver Area Educ.
Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 73738 (1996) (plurality op.); accord Pet.App.119a-20a (Southwick, J., dissenting). When an entity “exercises editorial
discretion in the selection and presentation” of expression
it disseminates, “it engages in [protected] speech activity.” Ark. Educ. Tel. Comm’n v. Forbes, 523 U.S. 666, 674
(1998). Consequently, the “compilation of the speech of
third parties” is a “communicative act[].” Id.
The Fifth Circuit recognized that private social media websites are
not government-run public forums. Pet.App.43a-44a n.15. Yet the majority and Respondent repeatedly referred to websites as “the public
square,” in reference to Packingham v. North Carolina, 137 S. Ct.
1730 (2017). That case considered whether government can bar sex
offenders from social media websites—not whether private websites
have the right to editorial discretion. Id. at 1735.
11
16
b. All of this precedent—and more—protects websites’ editorial discretion. “Social-media platforms like
Facebook, Twitter, YouTube, and TikTok are private
companies with First Amendment rights, and when they
. . . ‘disclose,’ ‘publish,’ or ‘disseminate’ information, they
engage in ‘speech within the meaning of the First Amendment.’” Moody, 34 F.4th at 1210 (cleaned up; quoting Sorrell, 564 U.S. at 570).
That conclusion flows directly from this Court’s seminal decision in Reno v. ACLU: (1) Internet websites
“‘publish’ information”; (2) disseminating speech through
websites is inherently “expressive”; and (3) there is “no
basis for qualifying the level of First Amendment scrutiny
that should be applied” to “Internet” websites. 521 U.S. at
853, 870.
Covered websites also engage in myriad editorial
choices designed to curate their expressive services. Supra p.3-5. At the most basic level, websites must choose
among billions of pieces of expression, evaluating what to
include and how to arrange this for specific viewers. When
websites “deprioritize content in viewers’ feeds or search
results . . . they engage in First-Amendment-protected
activity.” Moody, 34 F.4th at 1213.
2. The Fifth Circuit majority misapplied key
precedent.
The Fifth Circuit panel majority’s opinion misapplied
longstanding constitutional principles in multiple ways.
17
a. The majority rejected the First
Amendment’s protection of private
entities’ editorial choices over whether
and how they disseminate speech.
The panel majority incorrectly concluded that covered
websites engage in mere “conduct” and “censorship” unprotected by the First Amendment. E.g., Pet.App.9a (emphasis omitted). It neither cited Reno nor engaged with
this Court’s holdings that the First Amendment protects
both the “publication” and “dissemination” of speech. Instead, the majority held that when entities disseminate
speech authored by others, that “should weaken, not
strengthen, the [business’s] argument that it has a First
Amendment right to censor that speech.” Pet.App.106a.
The majority essentially limited this Court’s editorialdiscretion cases to their facts. It concluded that Tornillo
was limited to newspapers, suggesting that compelled
speech publication uniquely affects newspapers due to
space constraints. Pet.App.26a-27a, 40a. But Tornillo expressly rejected this precise argument. 418 U.S. at 258.
And Reno later reiterated this point. See 521 U.S. at 870.12
The distinction the majority drew between pre-publication (“ex
ante”) and post-publication (“ex post”) editorial discretion is factually
inaccurate and legally irrelevant. Pet.App.46a-47a. Factually, covered websites do engage in “ex ante” editorial discretion: many websites “screen all content for” at least some kinds of “unacceptable material.” NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1092 (N.D.
Fla. 2021) (emphasis added); see R.209-12; R.360-73; R.382-85;
NetChoice, By the Numbers 5-6, https://bit.ly/3Gn54Hj (quantifying
websites’ various levels of ex ante editorial discretion). Legally, government cannot compel continued dissemination any more than it can
compel initial dissemination. Cf. Pet.App.131a-32a (Southwick, J.,
12
18
The majority also incorrectly ruled that the First
Amendment protects editorial discretion only if the entity
“accepts reputational and legal responsibility for the content it edits.” Pet.App.45a-46a (citing newspaper cases).
The constitutional source of this requirement is unclear.
Regardless, websites do take reputational responsibility
for expression they publish. Through editorial discretion,
each website endeavors to “foster different sorts of online
communities, and promote various values and viewpoints.” Moody, 34 F.4th at 1205; see Pet.App.165a. Websites have faced public criticisms both when viewers have
disagreed with websites’ policies for their communities
and when websites have fallen short in their efforts to foster those communities. Supra p.5. Indeed, HB20 was motivated by Texas lawmakers’ perception that certain large
websites were not moderating content in a way with which
lawmakers agreed. Supra p.5.
The majority unduly limited PG&E to a situation
when government “penalized and disincentivized” one entity “by awarding space only to those who disagreed with”
that entity’s speech while requiring that entity “to associate with speech with which it may disagree.” Pet.App.29a30a (cleaned up; citation omitted). Even under this
strained reading, HB20 Section 7 is unlawful. HB20 requires covered websites to disseminate speech of “those
who disagree[] with [their] views” on all manner of subjects. PG&E, 475 U.S. at 13. Because “the decision about
whether, to what extent, and in what manner to
dissenting). Many other entities like “community bulletin boards,”
“[c]omedy club[]” open-mic nights, Manhattan, 139 S. Ct. at 1930,
bookstores, and live call-in shows retain First Amendment rights to
cease speech dissemination.
19
disseminate third-party content . . . is itself speech,”
HB20 “does interfere with [covered websites’] ability to
speak.” Moody, 34 F.4th at 1218 (citation omitted).
PG&E further demonstrates that websites’ supposed
ability to disclaim association with published speech does
not save HB20. Pet.App.41a. Requiring a speaker to “dissociat[e]” itself from forced speech by “simply post[ing] a
disclaimer” would “justify any law compelling speech.”
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights
Comm’n, 138 S. Ct. 1719, 1745 (2018) (Thomas, J., concurring in part); see Moody, 34 F.4th at 1218.
Regarding Hurley, the panel majority concluded this
Court’s “cornerstone” was that “parade sponsors were
‘intimately connected’ to” the parade’s message.
Pet.App.32a (quoting 515 U.S. at 576). But Hurley
broadly held that “a private speaker does not forfeit constitutional protection simply by combining multifarious
voices, or by failing to edit their themes to isolate an exact
message”—even if it is “rather lenient in admitting participants.” 515 U.S. at 569.
The majority insisted that its constrained view of
Tornillo, PG&E, and Hurley was justified by Rumsfeld v.
Forum for Academic & Institutional Rights, Inc.
(FAIR), 547 U.S. 47 (2006), and PruneYard Shopping
Center v. Robins, 447 U.S. 74 (1980). See Pet.App.27a-28,
32a-34a. But neither case involved private decisions about
what speech to publish or disseminate, and thus whatever
they hold about “hosting” speech is inapplicable here. See
FAIR, 547 U.S. at 64 (“[R]ecruiting services lack the expressive quality of a parade, a newsletter, or the editorial
page of a newspaper.”); PruneYard, 447 U.S. at 88 (no “intrusion into the function of editors”) (citation omitted); accord Pet.App.128a-29a (Southwick, J., dissenting). In
20
PruneYard, the shopping mall “owner did not even allege
that he objected to the content of the [speech].” PG&E,
475 U.S. at 12. And FAIR distinguished the “conduct” of
a law school’s employment recruitment assistance from a
“number of instances” where the Court “limited the government’s ability to force one speaker to host or accommodate another speaker’s message”—citing Hurley,
PG&E, and Tornillo. FAIR, 547 U.S. at 62-63.13
b. The majority erred by concluding that
HB20 is not subject to strict scrutiny.
The Fifth Circuit majority erred when it concluded
that HB20 is not subject to strict scrutiny. Pet.App.80a91a. HB20 triggers “strict scrutiny” because it is a viewpoint-, content-, and speaker-based law in many independent ways. Ams. for Prosperity (AFP) v. Bonta, 141
S. Ct. 2373, 2383 (2021) (strict scrutiny requires “the least
restrictive means of achieving a compelling state interest”) (citation omitted).
i. Applicable to both HB20 Sections 2 and 7, HB20 relies on a speaker- and content-based definition of “social
The Fifth Circuit panel majority also erroneously concluded that 47
U.S.C. § 230(c)(1) “reflects Congress’s factual determination that the
Platforms are not ‘publishers.’” Pet.App.51a. Congress made no such
factual determination, and Congress cannot override the Constitution
in any event. E.g., City of Boerne v. Flores, 521 U.S. 507, 519 (1997).
Section 230 reflects Congress’s judgment that all websites are
publishers of expression, and not mere passive conduits. This statute
protects all websites both when they (1) publish user-generated
speech, 47 U.S.C. § 230(c)(1), and (2) refuse to publish or continue
publishing user-generated speech, id. § 230(c)(2). See Pet.App.140a
(Southwick, J., dissenting). In fact, § 230(f)(4) expressly protects websites that “filter, screen, allow, . . . disallow[,] pick, choose, analyze,
. . . digest content[,] transmit, receive, display, forward, cache,
search, subset, organize, reorganize, or translate content.”
13
21
media platforms.” This Court has warned that speakerbased restrictions “are all too often simply a means to control content.” Citizens United v. FEC, 558 U.S. 310, 340
(2010); accord Nat’l Inst. Fam. and Life Advocs. (NIFLA) v. Becerra, 138 S. Ct. 2361, 2378 (2018); Reed v.
Town of Gilbert, 576 U.S. 155, 170 (2015); Sorrell, 564 U.S.
at 580. And HB20’s coverage definition regulates websites
based on their perceived viewpoint, as confirmed by the
Governor’s and key legislators’ statements.
HB20’s key definition of “social media platform” singles out speakers in two ways; (1) it imposes an arbitrary
size threshold of 50-million-monthly-U.S.-users, and (2) it
contains content-based exceptions for websites that “consist[] primarily of news, sports, entertainment.” Supra
p.6. The Fifth Circuit majority dismissed news, sports,
and entertainment websites as “fundamentally dissimilar
mediums,” but it did not explain why such websites offering “chat, comments, or interactive functionality” should
not be covered by HB20. Pet.App.82a.
Both the statute’s plain text and the “history of the
Act’s passage,” NIFLA, 138 S. Ct. at 2379 (Kennedy, J.,
concurring), confirm that HB20’s speaker-based restrictions are designed as content- and viewpoint-based.
The Governor’s official signing statement and statements
from HB20’s authors illustrate that Texas enacted HB20
to counteract a perceived anti-conservative bias among
covered websites. Supra p.5.
The majority dismissed that record evidence and
failed to take into account this Court’s speaker-based
analysis. It eschewed heightened scrutiny, flipping its focus to the covered websites’ purported lack of First
Amendment rights. Pet.App.83a-85a. For instance, the
majority distinguished Arkansas Writers’ Project, Inc. v.
22
Ragland, 481 U.S. 221 (1987), Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S.
575 (1983), and Grosjean v. American Press Co., 297 U.S.
233 (1936), because “Section 7’s focus on a particular subset of firms is not directed at suppressing particular ideas
or viewpoints.” Pet.App.84a. But HB20 is designed to
“suppress” the websites’ viewpoints and choices about
whether and how to disseminate speech. Thus, the majority should have considered HB20’s effect on the websites’
editorial discretion. The majority also dismissed Minneapolis Star and Grosjean as limited to differential taxation for publishers. Pet.App.83a-85a. But this Court’s
precedent clarifies such holdings are not so limited. E.g.,
Citizens United, 558 U.S. at 342.
ii. HB20 Section 7 also imposes viewpoint- and content-based regulations on covered websites’ exercise of
editorial discretion.
By its plain language, HB20 Section 7 is viewpointbased. It compels websites to disseminate “viewpoint[s]”
they otherwise would not. Tex. Civ. Prac. & Rem. Code
§ 143A.002.
More generally, HB20 is “a content-based regulation.”
Riley, 487 U.S. at 795. It compels covered websites to publish speech, and “[m]andating speech that a speaker
would not otherwise make necessarily alters the content
of the speech.” Id.
HB20 Section 7 also contains content-based exceptions. The Fifth Circuit majority construed Section 7’s exception for incitement and threats against protected classes to reach only unprotected speech. Pet.App.82a-83a.
Even if this exception were so limited (and nothing in the
text includes such a limitation), regulating only a subset
of low-value speech is still a viewpoint-based distinction.
23
R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992). The
majority also ignored HB20’s other exception allowing editorial discretion over any expression that “is the subject
of a referral or request from” select organizations. Tex.
Civ. Prac. & Rem. Code § 143A.006(a)(2).
c. The majority erred by concluding that
HB20 would satisfy intermediate
scrutiny.
HB20 fails even intermediate scrutiny, just as the
Eleventh Circuit recognized when it largely invalidated
Florida’s analogous law. Moody, 34 F.4th at 1227.
HB20 (1) does not “serve a significant governmental interest”; (2) is not unrelated to the suppression of First
Amendment rights; and (3) is not “narrowly tailored to”
furthering that significant interest. McCullen v. Coakley,
573 U.S. 464, 486 (2014) (citation omitted).
First, the Fifth Circuit majority erred by concluding
that the State has a legitimate interest advanced by
HB20. Pet.App.86a-87a. Hurley held that “forbidding acts
of discrimination” among expressive viewpoints is “a decidedly fatal objective” for the First Amendment’s “free
speech commands.” 515 U.S. at 578-79. In a variety of contexts, this Court has long rejected regulating private freespeech rights “to enhance the relative voice of others,”
Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (per curiam)—
or to “level the playing field,” Ariz. Free Enter. Club’s
Freedom Club PAC v. Bennett, 564 U.S. 721, 748-50
(2011). Tornillo, for instance, held that government cannot mandate “enforced access” to “enhance[]” speech,
promote “fairness,” prevent “abuses of bias and manipulative reportage,” or address purported “vast
24
accumulations of unreviewable power in the modern media empires.” 418 U.S. at 245, 250-51, 255.
The majority largely ignored these rulings, instead relying on Turner to find a significant governmental interest in “assuring that the public has access to a multiplicity
of information sources.” Pet.App.86a (cleaned up) (quoting Turner, 512 U.S. at 663). But Reno held that Turner’s
intermediate-scrutiny analysis about broadcast television
channels does not apply to Internet websites. Reno, 521
U.S. at 870.14 And if government has a valid interest in requiring private entities to maximize speech sources, that
would justify any law compelling speech dissemination—
and the outcomes in Tornillo, PG&E, and Hurley would
have been different. Pet.App.136a (Southwick, J., dissenting).
Second, the majority incorrectly concluded that HB20
is “unrelated to the suppression of free speech because at
most it curtails the Platforms’ censorship—which they
call speech[.]” Pet.App.88a (emphasis added). Labeling
editorial choices as “censorship” is no basis for declining
Though Turner upheld a federal law compelling cable television operators to carry broadcast television channels, this Court did so for at
least two crucial reasons not present here. First, cable companies had
a “physical” “bottleneck, or gatekeeper, control” over most (if not all)
of the country’s television programming through their control over
the lines that ran into people’s homes. Turner, 512 U.S. at 656 (emphasis added). Second, there would have been an “elimination of
broadcast television” if cable companies nationwide had not been required to carry the broadcast channels the federal government had
spent decades cultivating. Id. at 636-41, 646. If there were any doubt,
this Court later cabined Turner’s reach by confirming that cable operators retain editorial discretion over whether to carry cable television channels. Denver, 518 U.S. at 737-38; id. at 823-24 (Thomas, J.,
concurring in the judgment in part).
14
25
to apply heightened scrutiny. Again, the majority purported to assume that the websites’ editorial discretion is
protected by the First Amendment, but its analysis then
refused to perform heightened scrutiny.
Third, the majority erred in concluding that Section 7
is narrowly tailored and “does not burden substantially
more speech than necessary.” Pet.App.88a (cleaned up).
HB20’s regulation of how websites curate, promote, and
otherwise present expression goes far beyond what is
“necessary” and certainly is not “narrowly tailored.”
McCullen, 573 U.S. at 486 (citation omitted). The majority
largely ignored the broad range of websites’ editorial activities like arranging, recommending, and monetizing
speech, instead focusing almost exclusively on websites’
removal of expression. In the limited instances the majority considered other editorial tools, it breezily concluded
that the government had power to regulate those as well.
Most strikingly, the majority held that the First
Amendment permits government to force websites to subsidize speech. Pet.App.89a-90a n.35. This directly contravenes this Court’s precedent. Janus v. Am. Fed’n of State,
Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2464
(2018); see Pet.App.138a-39a (Southwick, J., dissenting);
Br. of the State of Texas as Amicus Curiae, McDonald v.
Longley, 4 F.4th 229 (5th Cir. 2021) (No. 20-50448), 2020
WL 4026192, at *1 (5th Cir. July 7, 2020) (arguing that
compulsory attorney-bar-dues funding “political and ideological activities . . . violate[] the First Amendment”).
Nor did the majority explain why HB20’s 50-millionmonthly-U.S.-user threshold is tailored to Texas’ purported interest in compelling the widest possible dissemination of speech sources. “[I]t’s hard to imagine how the
26
State could have a ‘substantial’ interest in” regulating
“only large platforms.” Moody, 34 F.4th at 1228.
The majority concluded that HB20’s arbitrary threshold was “reasonabl[e]” because covered websites are large
and popular. Pet.App.90a. But private entities do not lose
First Amendment rights for being large or popular. The
“enviable” “size and success” of such entities does not
“support[] a claim that [covered websites] enjoy an abiding monopoly of access to spectators.” Hurley, 515 U.S. at
577-78. Relatedly, entities retain First Amendment rights
even if they have an alleged “monopoly of the means of
communication.” Tornillo, 418 U.S. at 250. PG&E involved a state-sanctioned energy monopoly, which retained First Amendment protection. 475 U.S. at 17-18 &
n.14; accord Consol. Edison Co. of New York, Inc. v. Pub.
Serv. Comm’n of New York, 447 U.S. 530, 534 n.1 (1980)
(status as “regulated monopoly” does not “preclude . . .
assertion of First Amendment rights”).15
The majority conceded that “regulating smaller platforms would intrude more substantially on private property rights and perhaps create unique constitutional problems of its own.” Pet.App.90a. HB20’s targeting of large
websites intrudes just as equally on private property
rights and implicates the same constitutional problems.16
No covered website has a monopoly or precludes viewers from accessing billions of pieces of expressive content available via the Internet. The websites fiercely compete among themselves and with other
websites.
16
Because Judge Jones did not join (Pet.App.2a n.*) the common-carrier portions of Judge Oldham’s opinion (Pet.App.55a-80a, 110a112a), the panel majority did not accept Respondent’s common-carrier argument. The Eleventh Circuit comprehensively rejected this
15
27
d. The
majority’s
“original
public
meaning” analysis lacks historical
evidence and contradicts this Court’s
precedent.
The majority also erred in concluding that the First
Amendment’s “original public meaning” provides no protection for private entities’ editorial discretion.
Pet.App.20a-24a.
Neither Respondent nor the majority provided “persuasive evidence that [HB20’s] novel restriction on content is part of a long (if heretofore unrecognized) tradition
of proscription.” Brown, 564 U.S. at 792; cf. Pet.App.20a24a. That is why case after case rejects government power
to compel speech dissemination. Supra pp.12-16; see also,
e.g., Wooley v. Maynard, 430 U.S. 705, 717 (1977); W. Va.
State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
And the original public meaning of freedom of the press
extends far beyond mainstream mass media: the “press in
its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”
Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).
The majority suggested that the Constitution’s “original public meaning” would endorse HB20 because compelled speech is not a “prior restraint.” Pet.App.20a-23a.
But both Tornillo and Buckley described the invalid compelled-publication law in Tornillo as a governmental
common-carrier argument for reasons equally applicable here.
Moody, 34 F.4th at 1220-21. Moreover, even common carriers retain
the “right to be free from state regulation that burdens” choices about
speech dissemination. PG&E, 475 U.S. at 17-18 & n.14. Therefore,
HB20’s label as “a common carrier scheme has no real First Amendment consequences.” Denver, 518 U.S. at 825-26 (Thomas, J., concurring in the judgment in part).
28
“restraint.” Tornillo, 418 U.S. at 256; Buckley, 424 U.S. at
51. In all events, “[t]he protection of the First Amendment . . . is not limited to the Blackstonian idea that freedom of the press means only freedom from restraint prior
to publication.” Chaplinsky v. New Hampshire, 315 U.S.
568, 572 n.3 (1942).
B. The operational and disclosure provisions of
HB20 Section 2 likewise violate the First
Amendment.
HB20 Section 2 triggers, and fails, strict scrutiny.
These operational and disclosure provisions onerously intrude into protected editorial processes, and they would
require websites to overhaul their operations. While Zauderer’s justifications for narrowly burdening commercial
speech do not apply, Section 2 would fail even that lower
standard.
1. Section 2 triggers and fails strict scrutiny.
Section 2’s requirements are subject to strict scrutiny
because they are based on HB20’s content- and speakerbased “social media platform” coverage definition. Supra
pp.20-23; see NIFLA, 138 S. Ct. at 2374; United States v.
Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000) (“content-based burdens must satisfy the same rigorous scrutiny as . . . content-based bans”). Section 2 fails strict scrutiny because the State’s purported interest in enacting
HB20 (1) is constitutionally illegitimate; and (2) lacks any
substantial connection to Section 2’s requirements. Supra
pp.23-27.
Section 2 also intrudes on and chills the exercise of
protected editorial discretion. Herbert v. Lando, 441 U.S.
153, 174 (1979) (government cannot “subject[] the editorial process to private or official examination merely to
29
satisfy curiosity or to serve some general end such as the
public interest”). The Fifth Circuit erroneously concluded
that Herbert does not apply to covered websites because
their editorial discretion is not protected by the First
Amendment. Pet.App.97a-98a.
In all events, “laws that single out the press . . . are
always subject to at least some degree of heightened First
Amendment scrutiny.” Turner, 512 U.S. at 640-41. Section 2 fails both intermediate and “exacting scrutiny,”
AFP, 141 S. Ct. at 2383, because it neither furthers, nor is
tailored to, sufficient governmental interests, Buckley,
424 U.S. at 66; supra pp.23-27.
2. Zauderer’s test for evaluating disclosures
related
to
misleading
commercial
advertisements does not apply here.
The Fifth Circuit improperly used the lower standard
of review set forth in Zauderer to approve sweeping operational and disclosure burdens. Pet.App.91a-96a. But
Zauderer is a narrow exception to the otherwise heightened review of commercial speech regulations. It applies
only when government imposes non-burdensome, factual
disclosure requirements to cure what would otherwise be
inherently misleading commercial advertisements. Zauderer, 471 U.S. at 651-52. This Court has never held that
Zauderer applies when the regulated service is speech itself. And precedent establishes multiple elements limiting
Zauderer’s reach.
First, Zauderer does not apply because HB20 Section 2 does not regulate “commercial speech.” Milavetz,
Gallop & Milavetz, P.A. v. United States, 559 U.S. 229,
249 (2010); see Zauderer, 471 U.S. at 651. NIFLA and
Hurley recognized that Zauderer concerned only
30
“commercial advertising.” NIFLA, 138 S. Ct. at 2372;
Hurley, 515 U.S. at 573. And Zauderer itself “is confined
to advertising, emphatically and, one may infer, intentionally.” NAM, 800 F.3d at 522; see Am. Beverage Ass’n v.
City & Cnty. of San Francisco, 916 F.3d 749, 763 (9th Cir.
2019) (Ikuta, J., concurring in the judgment).
Here, Section 2 does not regulate the covered websites’ commercial speech—i.e., “proposal of a commercial
transaction.” City of Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 423 (1993). Most glaringly, the noticecomplaint-appeal provisions directly regulate websites’
individual choices about what speech to publish and disseminate. Tex. Bus. & Com. Code §§ 120.101-104. And the
remaining three disclosure requirements are similarly
disconnected from compelling speech during commercial
advertisements. Supra pp.6-7.
Second, HB20 Section 2 does not regulate “inherently
misleading” commercial advertisements. Milavetz, 559
U.S. at 250; see id. at 257 (Thomas, J., concurring in the
judgment); United States v. United Foods, 533 U.S. 405,
416 (2001) (“necessary to make voluntary advertisements
nonmisleading for consumers”); In re R.M.J., 455 U.S.
191, 205 (1982) (“not been shown to be misleading”).
Here, Section 2 is nowhere near tethered to deception
analogous to Zauderer. In that case, this Court held that
a disclosure requiring lawyers to inform contingent-fee
clients they may have to pay court costs would help prevent clients from being misled into thinking they faced no
financial risk. Zauderer, 471 U.S. at 652.
Third, Respondent, the Texas Legislature, and the
Texas Governor did not assert an interest in “preventing
deception of consumers.” Yet the Fifth Circuit seems to
have recognized this is the only permissible governmental
31
interest triggering Zauderer. Pet.App.92a. Nevertheless,
the Fifth Circuit concluded that Section 2 “advances the
State’s interest in ‘enabling users to make an informed
choice regarding whether to use the Platforms’”—a
sweeping claim that would apply to any source of information. Id. (cleaned up).
As Respondent has recognized, “‘it is plainly not
enough for the Government to say simply that it has a substantial interest in giving consumers information.’ This
justification is insufficient because it ‘would be true of any
and all disclosure requirements.’” States’ Letter to
Vanessa Countryman, Secretary, SEC, at 11 (Aug. 16,
2022), https://bit.ly/3SnE1BO (quoting AMI, 760 F.3d at
31 (Kavanaugh, J., concurring in the judgment)).
Fourth, the Fifth Circuit did not explain why Section
2’s provisions require only “purely factual and uncontroversial information,” like those approved in Zauderer.
Pet.App.92a.
Section 2’s notice-complaint-appeal requirements do
not require “factual” information, as they mandate that
covered websites must create processes for challenging
millions of editorial choices. Likewise, forcing websites to
disclose all their “business practices” far exceeds the limited factual disclosure that Zauderer deemed permissible.
See Zauderer, 471 U.S. at 652. Similarly, the biannual
transparency report requires websites to explain each of
the editorial choices they make millions of times per day,
which is far beyond the minimal facts at issue in Zauderer.
And the mandated “acceptable use policy” requiring,
among other things, explanation of “the types of content
allowed on the social media platform” mandates disclosure of editorial policies—not facts. Tex. Bus. & Com.
Code § 120.052(b).
32
3. Section 2 fails Zauderer’s test, even if it
applies.
Section 2’s provisions are “unduly burdensome and
likely to chill [covered websites’] protected speech.”
Moody, 34 F.4th at 1230.
The Fifth Circuit erroneously concluded (without evidentiary support in the record) that covered websites are
already capable of complying with Section 2’s requirements—and, alternatively, that Section 2’s technical and
financial burdens are not relevant factors under Zauderer. Pet.App.93a-95a.17 Under the Fifth Circuit’s analysis, therefore, Texas could single out entities that disseminate disfavored speech and impose costly, business-altering regulations under the guise of “disclosure.”
Section 2’s provisions have similar infirmities as the
disclosure provision held unlawful by the Eleventh Circuit: they require “detailed justification for every contentmoderation action.” Moody, 34 F.4th at 1230.
Start with HB20’s notice-complaint-and-appeal provisions. These require covered websites to develop procedures applicable to billions of editorial judgments across
websites’ international operations. Tex. Bus. & Com.
Code §§ 120.101-104. Over a single three-month period in
2021, YouTube removed 9.5 million videos and 1.16 billion
comments. R.214-15. Over a similar period, Facebook removed over 40 million pieces of bullying, harassing, and
hateful content. Pet.App.172a-73a. YouTube currently
provides appeals for only video deletions but not comment
Regardless, it is immaterial whether websites engage in some voluntary transparency measures. Addressing any “gap” between “voluntary” efforts and government mandates “can hardly be a compelling state interest.” Brown, 564 U.S. at 803.
17
33
deletions; so “YouTube would have to expand these systems’ capacity by over 100X—from a volume handling millions of removals to that of over a billion removals.” R.214.
Similarly, both Facebook and YouTube’s declarants provided undisputed evidence that their current notice systems did not provide the level of detail that HB20 requires. R.1149; R.1250.
HB20’s compelled “biannual transparency report” requires covered websites to collect voluminous data, far exceeding websites’ current transparency efforts. Tex. Bus.
& Com. Code § 120.053. Websites exercise editorial discretion over billions of pieces of content, so the burden of
these requirements would be massive and essentially impossible to meet. Even the provisions that appear to call
for statistics first require voluminous data collection and
calculation. For example, this provision requires (1) a
“description of each tool, practice, action, or technique
used in enforcing the acceptable use policy,” id.
§ 120.053(a)(7) (emphasis added); and (2) websites to
track every single “action” they take to, among other
things, delete or “deprioritiz[e]” “illegal” or “potentially
policy-violating” expression, id. § 120.053(a)(1)-(2), (4)-(6),
(b). But websites make prioritization decisions about
every piece of content, thus taking “action” “per individual
per piece of content.” R.1176; see R.227 (“deprioritization”
“happens every time a user loads her or his News Feed”).
Thus, this provision would require websites to “track” and
describe billions of actions a year, including information
about that content and how it was reported. Id.
§ 120.053(a)(3), (b). As Facebook’s declarant testified, “I
don’t even know or understand the math that you would
need to go through to be able to calculate that.” R.1176.
34
Furthermore, HB20’s mandated “public disclosures”
as to “content management, data management, and business practices”—with its accompanying non-exhaustive
list—encompass virtually everything covered websites do.
Tex. Bus. & Com. Code § 120.051(a). HB20 cryptically requires these disclosures to “be sufficient to enable users
to make an informed choice.” Id. § 120.051(b). This standard would allow Respondent to sue because a website’s
disclosure on enumerated topics is “insufficient” (in some
unspecified way) or even because a website did not provide unenumerated information. Unrebutted evidence
demonstrates that requiring disclosure of the detailed
ways websites detect policy-violating expression would
enable wrongdoers and “unscrupulous users” to evade detection and harm viewers. R.215; R.226-27; R.237-40.
These disclosure mandates—particularly with respect to
“algorithms”—would also reveal trade secrets and other
competitively sensitive information. Tex. Bus. & Com.
Code § 120.051(a)(4); see R.215; R.226-27.
HB20’s requirement that websites publish an “acceptable use policy” compels websites’ speech. Tex. Bus.
& Com. Code § 120.052. And throughout this litigation,
Respondent has not conceded that Petitioners’ members
are complying with this provision. It therefore invites arbitrary enforcement and lawsuits over, for instance, what
“reasonably inform[s] users.” Id. § 120.051(b); see Cal.
Chamber, 29 F.4th at 479 (litigation risks are relevant to
burden).
35
III. The First Amendment issues implicated by the
Fifth Circuit’s split with the Eleventh Circuit are
important questions the Court should resolve now.
As this Court acknowledged in May, the issues in this
case are important and worthy of this Court’s review.
Paxton, 142 S. Ct. at 1715-16; id. at 1716 (Alito, J., dissenting). Florida and Texas are just the first States to attempt
stifling regulation of social media websites’ editorial discretion. They will not be the last. See Moody Cond. Cross
Pet. at 34; Moody Resp. Br. at 32. Before these unconstitutional proposals spiral out of control, this Court should
reaffirm the First Amendment’s centuries-old protections
prohibiting government from dictating how private entities must publish or disseminate speech. Accordingly, this
Court should grant the already-pending petitions in
Moody v. NetChoice, Nos. 22-277 & 22-393, to resolve
those questions.
Alternatively, the Court could grant this Petition, too.
There is no vehicle impediment to reviewing the question
presented here. The Fifth Circuit majority below incorrectly concluded that Petitioners brought only an overbreadth challenge. Pet.App9a, 15a. Regardless, the majority’s holding presents no vehicle problem. Overbreadth
claims are facial challenges, and Petitioners prevail under
the overbreadth doctrine. AFP, 141 S. Ct. at 2387. Petitioners’ First Amendment overbreadth challenges present the legal issues raised by the question presented:
HB20 is, at a minimum, “overbroad” because “a substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate
sweep,” United States v. Stevens, 559 U.S. 460, 473, 435
36
(2010) (citation omitted), assuming for the sake of argument that there is any legitimate sweep.
Moreover, Petitioners have also raised a traditional facial challenge that HB20 lacks any “legitimate sweep.” Id.
In the district court, Petitioners argued the challenged
provisions “are facially unconstitutional in all applications,” while raising overbreadth “[i]n the alternative.”
R.146 (emphasis added) (citing United States v. Salerno,
481 U.S. 739, 745 (1987)). And in the court of appeals, Petitioners argued that “whenever HB20 applies, it unconstitutionally abridges editorial judgment and compels
speech. City of L.A. v. Patel, 576 U.S. 409, 418 (2015).” Appellees’ Br., NetChoice, L.L.C. v. Paxton, 49 F.4th 439
(5th Cir. 2022) (No. 21-51178), 2022 WL 1046833, at *44
n.17 (Apr. 1, 2022).
The exceptionally important First Amendment issues
presented in this case are thus cleanly raised by this Petition.
CONCLUSION
The Court should hold this Petition pending resolution
of Moody v. NetChoice, Nos. 22-277 & 22-393, or alternatively grant this Petition.
Respectfully submitted.
37
Paul D. Clement
Erin E. Murphy
James Y. Xi*
CLEMENT & MURPHY, PLLC
706 Duke Street
Alexandria, VA 22314
Kyle D. Hawkins
LEHOTSKY KELLER LLP
919 Congress Ave.
Austin, TX 78701
*Supervised by principals of the
firm who are members of the Virginia bar
Scott A. Keller
Counsel of Record
Steven P. Lehotsky
Jeremy Evan Maltz
LEHOTSKY KELLER LLP
200 Massachusetts Ave., NW
Washington, DC 20001
(512) 693-8350
scott@lehotskykeller.com
Katherine C. Yarger
LEHOTSKY KELLER LLP
700 Colorado Blvd., #407
Denver, CO 80206
Counsel for Petitioners
DECEMBER 2022
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — Opinion of the United States
Court of Appeals for the Fifth Circuit, Filed
September 16, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — Order of the United States District
Court for the Western District of Texas, Austin
Division, Filed December 1, 2021 . . . . . . . . . . . . . 143a
APPENDIX C — Relevant Constitutional and
Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . 186a
1a
APPENDIX A — Appendix
Opinion ofA the United States
Court of Appeals for the Fifth Circuit, Filed
September 16, 2022
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 21-51178
NETCHOICE, L.L.C., A 501(C)(6) DISTRICT OF
COLUMBIA ORGANIZATION DOING BUSINESS
AS NETCHOICE; COMPUTER COMMUNICATIONS
INDUSTRY ASSOCIATION, A 501(C)(6) NON-STOCK
VIRGINIA CORPORATION DOING
BUSINESS AS CCIA,
Plaintiffs-Appellees,
versus
KEN PAXTON, IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF TEXAS,
Defendant-Appellant.
September 16, 2022, Filed
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:21-cv-840
Before Jones, Southwick, and Oldham, Circuit Judges.
2a
Appendix A
A ndrew S. Oldham, Circuit Judge:*
A Texas statute named House Bill 20 generally
prohibits large social media platforms from censoring
speech based on the viewpoint of its speaker. The platforms
urge us to hold that the statute is facially unconstitutional
and hence cannot be applied to anyone at any time and
under any circumstances.
In urging such sweeping relief, the platforms offer
a rather odd inversion of the First Amendment. That
Amendment, of course, protects every person’s right to
“the freedom of speech.” But the platforms argue that
buried somewhere in the person’s enumerated right to
free speech lies a corporation’s unenumerated right to
muzzle speech.
The implications of the platforms’ argument are
staggering. On the platforms’ view, email providers,
mobile phone companies, and banks could cancel the
accounts of anyone who sends an email, makes a phone call,
or spends money in support of a disfavored political party,
candidate, or business. What’s worse, the platforms argue
that a business can acquire a dominant market position
by holding itself out as open to everyone—as Twitter did
in championing itself as “the free speech wing of the free
speech party.” Blue Br. at 6 & n.4. Then, having cemented
itself as the monopolist of “the modern public square,”
Packingham v. North Carolina, 137 S. Ct. 1730, 1737, 198
* Judge Jones joins all but Part III.E and Part V.B.3 of this
opinion.
3a
Appendix A
L. Ed. 2d 273 (2017), Twitter unapologetically argues that
it could turn around and ban all pro-LGBT speech for no
other reason than its employees want to pick on members
of that community, Oral Arg. at 22:39-22:52.
Today we reject the idea that corporations have a
freewheeling First Amendment right to censor what
people say. Because the district court held otherwise, we
reverse its injunction and remand for further proceedings.
I.
A.
This case involves HB 20, a Texas statute that
regulates large social media platforms.1 The law regulates
platforms2 with more than 50 million monthly active users
1. The full text of HB 20 can be viewed here: https://perma.
cc/9KF3-LEQX. The portions of HB 20 relevant to this lawsuit are
codified at Texas Business and Commerce Code §§ 120.001-151 and
Texas Civil Practice and Remedies Code §§ 143A.001-08.
2. HB 20 defines “social media platform” to include “an Internet
website or application that is open to the public, allows a user to create
an account, and enables users to communicate with other users for
the primary purpose of posting information, comments, messages,
or images.” T ex . Bus . & C om . Code § 120.001(1). The definition
expressly excludes internet service providers, email providers, and
any “online service, application, or website” that “consists primarily
of news, sports, entertainment, or other information or content that
is not user generated but is preselected by the provider,” and “for
which any chat, comments, or interactive functionality is incidental
to, directly related to, or dependent on the provision of [that] content.”
Id. § 120.001(1)(A)-(C).
4a
Appendix A
(“Platforms”), such as Facebook, Twitter, and YouTube.
Tex. Bus. & Com. Code § 120.002(b). In enacting HB 20,
the Texas legislature found that the Platforms “function
as common carriers, are affected with a public interest,
are central public forums for public debate, and have
enjoyed governmental support in the United States.” It
further found that “social media platforms with the largest
number of users are common carriers by virtue of their
market dominance.”
Two sections of HB 20 are relevant to this suit. First
is Section 7, which addresses viewpoint-based censorship
of users’ posts. Section 7 provides:
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.
T ex. Civ. Prac. & Rem. Code § 143A.002(a). “Censor”
means “to block, ban, remove, deplatform, demonetize,
de-boost, restrict, deny equal access or visibility to,
or otherwise discriminate against expression.” Id.
§ 143A.001(1). For Section 7 to apply, a censored user must
reside in Texas, do business in Texas, or share or receive
expression in Texas. Id. § 143A.004(a)-(b).
5a
Appendix A
This prohibition on viewpoint-based censorship
contains several qualifications. Section 7 does not limit
censorship of expression that a Platform “is specifically
authorized to censor by federal law”; expression that “is
the subject of a referral or request from an organization
with the purpose of preventing the sexual exploitation of
children and protecting survivors of sexual abuse from
ongoing harassment”; expression that “directly incites
criminal activity or consists of specific threats of violence
targeted against a person or group because of their race,
color, disability, religion, national origin or ancestry, age,
sex, or status as a peace officer or judge”; or “unlawful
expression.” Id. § 143A.006.
Finally, Section 7 provides a narrow remedial scheme.
If a Platform violates Section 7 with respect to a user, that
user may sue for declaratory and injunctive relief and
may recover costs and attorney’s fees if successful. Id.
§ 143A.007. The Attorney General of Texas may also sue
to enforce Section 7 and may recover attorney’s fees and
reasonable investigative costs if successful. Id. § 143A.008.
Damages are not available.
The other relevant provision of HB 20 is Section 2. It
imposes certain disclosure and operational requirements
on the Platforms. These requirements fall into three
categories. First, Platforms must disclose how they
moderate and promote content and publish an “acceptable
use policy.” Tex. Bus. & Com. Code §§ 120.051-52. This
policy must inform users about the types of content allowed
on the Platform, explain how the Platform enforces its
policy, and describe how users can notify the Platform of
content that violates the policy. Id. § 120.052(b).
6a
Appendix A
Platforms must also publish a “biannual transparency
report.” Id. § 120.053. This report must contain various
high-level statistics related to the Platform’s contentmoderation efforts, including the number of instances in
which the Platform was alerted to the presence of policyviolating content; how the Platform was so alerted; how
many times the Platform acted against such content; and
how many such actions were successfully or unsuccessfully
appealed. See ibid.
Last, Platforms must maintain a complaint-andappeal system for their users. See id. §§ 120.101-04.
When a Platform removes user-submitted content, it
must generally explain the reason to the user in a written
statement issued concurrently with the removal. Id.
§ 120.103(a). It also must permit the user to appeal the
removal and provide a response to the appeal within 14
business days. Id. § 120.104. Section 2 includes various
exceptions to these notice-and-appeal requirements. See
id. § 120.103(b).
Only the Texas Attorney General may enforce Section
2. Id. § 120.151. The Attorney General may seek injunctive
relief but not damages. Ibid.
B.
NetChoice and the Computer & Communications
Industry Association are trade associations representing
companies that operate Platforms covered by HB 20.
They sued the Attorney General of Texas (“Texas”) on
September 22, 2021, before HB 20 went into effect.
7a
Appendix A
The district court issued a preliminary injunction on
December 1, 2021. It first held that Section 7 is facially
unconstitutional. The court “start[ed] from the premise
that social media platforms are not common carriers.” It
then concluded that Platforms engage in “some level of
editorial discretion” by managing and arranging content,
and viewpoint-based censorship is part of that editorial
discretion. It further held that this editorial discretion is
protected by cases like Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974).
So according to the district court, HB 20’s prohibition on
viewpoint-based censorship unconstitutionally interfered
with the Platforms’ protected editorial discretion. The
court did not explain why a facial attack on Section 7
was appropriate, other than asserting that Section 7 is
“replete with constitutional defects” and the court believed
“nothing . . . could be severed and survive.”
The district court then held that Section 2 is facially
unconstitutional. It reasoned that “Section 2’s disclosure
and operational provisions are inordinately burdensome
given the unfathomably large numbers of posts on these
sites and apps.” Moreover, the court reasoned that
Section 2 will “chill the social media platforms’ speech”
by disincentivizing viewpoint-based censorship. Again,
the court did not explain why a facial challenge to Section
2 was appropriate, other than stating that it imposes
“onerously burdensome disclosure and operational
requirements.”
The district court also found that HB 20 discriminates
based on content and speaker, because it permits
8a
Appendix A
censorship of some content (like specific threats of
violence directed at a protected class) and only applies
to large social media platforms. It then held that HB 20
fails any level of heightened scrutiny. Finally, it issued a
preliminary injunction.
Texas timely appealed. On December 15, 2021,
Texas moved for a stay of the preliminary injunction. We
granted that motion on May 11, 2022. On May 31, 2022,
in a 5-4 decision, the Supreme Court vacated our stay.
Justice Kagan noted her dissent. Justice Alito, joined by
Justice Thomas and Justice Gorsuch, authored a six-page
dissenting opinion to argue that our stay should have
remained undisturbed.
II.
We review the district court’s preliminary injunction
for abuse of discretion. Atchafalaya Basinkeeper v. U.S.
Army Corps of Eng’rs, 894 F.3d 692, 696 (5th Cir. 2018). A
district court abuses its discretion if it grants an injunction
based on clearly erroneous factual findings or erroneous
conclusions of law. Ibid.
A preliminary injunction is “an extraordinary remedy
that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.” Winter v. NRDC, Inc.,
555 U.S. 7, 22, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). “A
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.” Id. at 20.
9a
Appendix A
III.
The Platforms contend that Section 7 of HB 20 is
facially unconstitutional. We disagree. We (A) first reject
the Platforms’ facial overbreadth challenge because
Section 7 does not chill speech; if anything, it chills
censorship. Then we (B) turn to the First Amendment’s
text and history, which offer no support for the Platforms’
claimed right to censor. Next, applying Supreme Court
precedent, we (C) hold that Section 7 does not regulate the
Platforms’ speech at all; it protects other people’s speech
and regulates the Platforms’ conduct. Our decision (D) 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. Our decision (E) is still
further reinforced by the common carrier doctrine,
which vests the Texas Legislature with the power to
prevent the Platforms from discriminating against Texas
users. Finally, even if all of that’s wrong and Section 7
does regulate the Platforms’ speech, it (F) satisfies the
intermediate scrutiny that applies to content-neutral
rules.
A.
We begin with the First Amendment overbreadth
doctrine. It (1) offers a facial constitutional remedy that
protects speech. It (2) does not apply here because if
Section 7 chills anything, it chills censorship. And the
Platforms’ parade of whataboutisms proves their real
complaint is a purely speculative one about how HB 20
will be enforced. The Platforms are therefore not entitled
to pre-enforcement facial relief against Section 7.
10a
Appendix A
1.
The Platforms have asked a federal court to invalidate
HB 20 in its entirety before Texas even tries to enforce
it. 3 To put it mildly, pre-enforcement facial challenges to
legislative acts are “disfavored for several reasons.” Wash.
State Grange v. Wash. State Republican Party, 552 U.S.
442, 450, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008). Three
bear emphasis here.
First, the judicial power vested in us by Article
III does not include the power to veto statutes. And
that omission is no accident: The Founders expressly
considered giving judges that power, and they decided
not to do so. Several delegates at the Constitutional
Convention suggested creating a “Council of Revision”
consisting of federal judges and the executive. Jonathan
F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev.
933, 954 (2018). They wanted to empower this Council
to veto Congress’s legislation, subject to congressional
3. The plaintiff trade associations—which include every
Platform subject to HB 20—asked the district court to find the
statute could never be constitutionally enforced against them. They
did so before the law could be enforced against anyone. See 13B
Charles A lan Wright et al., Federal Practice and Procedure
§ 3532.3 (3d ed. Apr. 2022 Update) (stressing the “distinctions
between the ripeness of broad attacks on the legitimacy of any
regulation and the nonripeness of more particular attacks on more
specific applications”). During briefing in the district court, the
Platforms characterized their suit as a facial challenge to HB 20.
The district court’s opinion thus properly treated this suit as a facial
challenge, and the Platforms do not object to that characterization
on appeal.
11a
Appendix A
override. Ibid. A veto would render the legislation “void.”
Ibid. But despite the best efforts of James Wilson and
James Madison, the Convention rejected the proposal—
three times over. Id. at 957-59. That means we have no
power to “strike down,” “void,” or “invalidate” an entire
law. See id. at 936 (explaining that “federal courts have
no authority to erase a duly enacted law from the statute
books” but have only the power “to decline to enforce a
statute in a particular case or controversy” and “to enjoin
executive officials from taking steps to enforce a statute”);
Borden v. United States, 141 S. Ct. 1817, 1835-36, 210 L.
Ed. 2d 63 (2021) (Thomas, J., concurring in the judgment)
(noting that “[c]ourts have no authority to strike down
statutory text” and that “a facial challenge, if successful,
has the same effect as nullifying a statute” (quotations
omitted)); Kevin C. Walsh, Partial Unconstitutionality,
85 N.Y.U. L. Rev. 738, 756 (2010) (explaining that the
Founders did not conceive of judicial review as the power
to “strike down” legislation).
Second, the judicial power vested in us by Article III
is limited to deciding certain “Cases” and “Controversies.”
U.S. Const. art. III, § 2. A federal court “has no jurisdiction
to pronounce any statute, either of a state or of the United
States, void, because irreconcilable with the constitution,
except as it is called upon to adjudge the legal rights of
litigants in actual controversies.” Liverpool, N.Y. & Phila.
S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39, 5 S. Ct.
352, 28 L. Ed. 899 (1885); accord Marbury v. Madison, 5
U.S. (1 Cranch) 137, 178, 2 L. Ed. 60 (1803). This limitation
on federal jurisdiction to “actual controversies” prevents
courts from “ancitipat[ing] a question of constitutional law
12a
Appendix A
in advance of the necessity of deciding it.” Liverpool, 113
U.S. at 39; see also Broadrick v. Oklahoma, 413 U.S. 601,
610-11, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973) (“[U]nder our
constitutional system courts are not roving commissions
assigned to pass judgment on the validity of the Nation’s
laws.”). And it makes pre-enforcement facial challenges
a particularly nettlesome affair. Such suits usually do
not present “flesh-and-blood legal problems with data
relevant and adequate to an informed judgment.” New
York v. Ferber, 458 U.S. 747, 768, 102 S. Ct. 3348, 73 L.
Ed. 2d 1113 (1982) (quotation omitted). Instead, they
require the court “to consider every conceivable situation
which might possibly arise in the application of complex
and comprehensive legislation,” forcing courts to deploy
the severe power of judicial review “with reference to
hypothetical cases.” United States v. Raines, 362 U.S. 17,
21-22, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960).
Third, federalism. Invalidate-the-law-now, discoverhow-it-works-later judging is particularly troublesome
when reviewing state laws, as it deprives “state courts [of]
the opportunity to construe a law to avoid constitutional
infirmities.” Ferber, 458 U.S. at 768. And “facial challenges
threaten to short circuit the democratic process by
preventing laws embodying the will of the people from
being implemented in a manner consistent with the
Constitution.” Wash. State Grange, 552 U.S. at 451. The
respect owed to a sovereign State thus demands that we
look particularly askance at a litigant who wants unelected
federal judges to countermand the State’s democratically
accountable policymakers.
13a
Appendix A
In accordance with the disfavor that attaches to preenforcement facial challenges, the legal standard for them
is extraordinarily high. Ordinarily, plaintiffs bringing
this sort of “facial challenge to a legislative Act” must
“establish that no set of circumstances exists under which
the Act would be valid.” United States v. Salerno, 481 U.S.
739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987); see also
Americans for Prosperity Found. v. Bonta, 141 S. Ct.
2373, 2387, 210 L. Ed. 2d 716 (2021). “Such a challenge
is the most difficult to mount successfully.” City of El
Cenizo v. Texas, 890 F.3d 164, 187 (5th Cir. 2018) (quotation
omitted). The Platforms do not even try to show that HB
20 is “unconstitutional in all of its applications.” Wash.
State Grange, 552 U.S. at 449.4
Instead, their challenge is premised on First
Amendment overbreadth doctrine. Under this doctrine,
the Supreme Court has “recognized a second type of
facial challenge, whereby a law may be invalidated as
overbroad if a substantial number of its applications
are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep.” Bonta, 141 S. Ct. at 2387
(quotation omitted). This doctrine is limited to “the First
Amendment context.” Ibid.
4. For example, the Platforms do not argue that HB 20’s
provision restricting censorship based on “a user’s geographic
location in [Texas]” could not be constitutionally applied to them.
Tex. Civ. Prac. & Rem. Code § 143A.002(a)(3). While they vigorously
argue that viewpoint-based censorship is protected speech, they
nowhere contend that the First Amendment protects censorship
based on geographic location.
14a
Appendix A
“Overbreadth is a judicially created doctrine
designed to prevent the chilling of protected expression.”
Massachusetts v. Oakes, 491 U.S. 576, 584, 109 S. Ct. 2633,
105 L. Ed. 2d 493 (1989) (plurality op.); see generally Lewis
D. Sargentich, Note, The First Amendment Overbreadth
Doctrine, 83 Harv. L. Rev. 844 (1970). As the seminal case
explained, the overbreadth doctrine addresses “threat[s]
to censure comments on matters of public concern.”
Thornhill v. Alabama, 310 U.S. 88, 97, 60 S. Ct. 736, 84
L. Ed. 1093 (1940). The doctrine’s rationale is that “[m]any
persons, rather than undertake the considerable burden
(and sometimes risk) of vindicating their rights through
case-by-case litigation, will choose simply to abstain from
protected speech—harming not only themselves but
society as a whole, which is deprived of an uninhibited
marketplace of ideas.” Virginia v. Hicks, 539 U.S. 113, 119,
123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003) (citation omitted).
Consistent with the overbreadth doctrine’s rationale,
the Supreme Court has only applied it where there is a
substantial risk that the challenged law will chill protected
speech or association. See, e.g., Bigelow v. Virginia, 421
U.S. 809, 817-18, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975)
(declining to address facial overbreadth challenge where
statutory amendment removed risk that statute “will
chill the rights of others”); Law Students C.R. Rsch.
Council, Inc. v. Wadmond, 401 U.S. 154, 167, 91 S. Ct.
720, 27 L. Ed. 2d 749 (1971) (denying facial relief where
“careful administration” of state regulatory scheme could
avoid “chilling effects upon the exercise of constitutional
freedoms”). The Court has also instructed that “the
overbreadth doctrine is strong medicine” that should
15a
Appendix A
be employed “only as a last resort.” L.A. Police Dep’t v.
United Reporting Pub. Corp., 528 U.S. 32, 39, 120 S. Ct.
483, 145 L. Ed. 2d 451 (1999) (quotation omitted). And
the overbreadth doctrine’s function “attenuates” as the
regulated expression moves from “pure speech toward
conduct.” Id. at 40 (quotation omitted).
2.
The overbreadth doctrine does not apply to Section 7.
That’s for three reasons.
First, the primary concern of overbreadth doctrine is
to avoid chilling speech. But Section 7 does not chill speech;
instead, it chills censorship. So there can be no concern
that declining to facially invalidate HB 20 will inhibit
the marketplace of ideas or discourage commentary on
matters of public concern. Perhaps as-applied challenges
to speculative, now-hypothetical enforcement actions will
delineate boundaries to the law. But in the meantime,
HB 20’s prohibitions on censorship will cultivate rather
than stifle the marketplace of ideas that justifies the
overbreadth doctrine in the first place.
The Platforms, of course, argue that their censorship
somehow should be construed as speech for First
Amendment purposes. We deal with this contention at
length in Parts III.B, III.C, III.D, and III.E, infra. But
even stipulating arguendo that censorship can enjoy First
Amendment protection, it’s a far cry from the “pure speech”
that’s the core concern of the overbreadth doctrine. See
United Reporting, 528 U.S. at 40. At most, the Platforms’
16a
Appendix A
censorship is, in the district court’s words, a “way that
online services express themselves and effectuate their
community standards.” That is, censorship is at best a
form of expressive conduct, for which the overbreadth
doctrine provides only “attenuate[d]” protection. Ibid.
(quotation omitted); see also Broadrick, 413 U.S. at 614
(“[O]verbreadth scrutiny has generally been somewhat
less rigid in the context of statutes regulating conduct
in the shadow of the First Amendment, but doing so in a
neutral, noncensorial manner.”).
Tellingly, the Platforms have pointed to no case
applying the overbreadth doctrine to protect censorship
rather than speech. To the contrary, the Platforms
principally rely on three cases. See Miami Herald, 418
U.S. 241; Pacific Gas & Electric Co. v. Public Utilities
Com., 475 U.S. 1, 106 S. Ct. 903, 89 L. Ed. 2d 1 (1986); and
Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed.
2d 487 (1995). But all three involved challenges to concrete
applications of an allegedly unconstitutional law, raised by
a defendant in state court proceedings. So even if these
cases supported the Platforms’ argument about their
substantive First Amendment rights, they would provide
no support for the Platforms’ attempt to use the First
Amendment as a sword to facially invalidate a law before
it has been applied to anyone under any circumstances.
Second, overbreadth adjudication is meant to protect
third parties who cannot “undertake the considerable
burden” of as-applied litigation and whose speech is
therefore likely to be chilled by an overbroad law. Hicks,
17a
Appendix A
539 U.S. at 119; see also United States v. Sineneng-Smith,
140 S. Ct. 1575, 1586, 206 L. Ed. 2d 866 (2020) (Thomas,
J., concurring) (explaining that overbreadth doctrine
“allow[s] individuals to challenge a statute based on a
third party’s constitutional rights”). Courts have deemed
this chilling effect on third parties particularly worrisome
when the overbroad law imposes criminal sanctions. See,
e.g., Gooding v. Wilson, 405 U.S. 518, 521, 92 S. Ct. 1103,
31 L. Ed. 2d 408 (1972).
This rationale for overbreadth adjudication is wholly
inapposite here. First of all, there are no third parties
to chill. The plaintiff trade associations represent all the
Platforms covered by HB 20. Additionally, unlike individual
citizens potentially subject to criminal sanctions—the
usual beneficiaries of overbreadth rulings—the entities
subject to HB 20 are large, well-heeled corporations that
have hired an armada of attorneys from some of the best
law firms in the world to protect their censorship rights.
And any fear of chilling is made even less credible by HB
20’s remedial scheme. Not only are criminal sanctions
unavailable; damages are unavailable. It’s hard to see how
the Platforms—which have already shown a willingness
to stand on their rights—will be so chilled by the prospect
of declaratory and injunctive relief that a facial remedy
is justified.
Third, the Platforms principally argue against HB
20 by speculating about the most extreme hypothetical
applications of the law. Such whataboutisms further
exemplify why it’s inappropriate to hold the law facially
unconstitutional in a pre-enforcement posture.
18a
Appendix A
Texas enacted HB 20 to address “the Platforms’
evolution into internet censors.” Explaining the perceived
need for the law, Texas and its amici cite numerous
instances in which the Platforms have censored what
Texas contends is pure political speech. For example,
one amicus brief documents the Platforms’ censorship
of fifteen prominent celebrities and political figures—
including five holding federal elected office. See Brief
for Amici Curiae The Babylon Bee, LLC, et al. at 26-38.
Texas also points to the Platforms’ “discriminat[ion]
against Americans and in favor of foreign adversaries” and
censorship of even a congressional hearing that featured
disfavored viewpoints.
The Platforms do not directly engage with any of these
concerns. Instead, their primary contention—beginning
on page 1 of their brief and repeated throughout and at
oral argument—is that we should declare HB 20 facially
invalid because it prohibits the Platforms from censoring
“pro-Nazi speech, terrorist propaganda, [and] Holocaust
denial[s].” Red Br. at 1.
Far from justifying pre-enforcement facial invalidation,
the Platforms’ obsession with terrorists and Nazis proves
the opposite. The Supreme Court has instructed that
“[i]n determining whether a law is facially invalid,”
we should avoid “speculat[ing] about ‘hypothetical’ or
‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 44950. Overbreadth doctrine has a “tendency . . . to summon
forth an endless stream of fanciful hypotheticals,” and
this case is no exception. United States v. Williams, 553
U.S. 285, 301, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008).
19a
Appendix A
But it’s improper to exercise the Article III judicial power
based on “hypothetical cases thus imagined.” Raines,
362 U.S. at 22; cf. Sineneng-Smith, 140 S. Ct. at 1585-86
(Thomas, J., concurring) (explaining the tension between
overbreadth adjudication and the constitutional limits on
judicial power).
If we focus i nst ead on “ t he st atut e’s facia l
requirements,” Wash. State Grange, 552 U.S. at 450,
its language renders implausible many of the Platforms’
extreme hypothesized applications of the law. HB 20
expressly permits the Platforms to censor any unlawful
expression and certain speech that “incites criminal
activity or consists of specific threats”—not to mention
any content the Platforms are authorized to censor by
federal law. Tex. Civ. Prac. & Rem. Code § 143A.006(a).
So at a minimum, we should avoid “determin[ing] the
constitutionality of [HB 20] in hypothetical situations
where it is not even clear the State itself would consider
its law applicable.” Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 382, 112 S. Ct. 2031, 119 L. Ed. 2d 157
(1992). Or as one amicus puts it, the Platforms at this early
stage may not use borderline hypotheticals involving vile
expression to pretermit consideration of “what actually
is at stake—namely, the suppression of domestic political,
religious, and scientific dissent.” Brief of Amicus Curiae
Prof. Philip Hamburger at 21.
In short, Section 7 chills no speech whatsoever. To
the extent it chills anything, it chills censorship. That is,
Section 7 might make censors think twice before removing
speech from the Platforms in a viewpoint-discriminatory
20a
Appendix A
manner. But we cannot find any cases, from any court, that
suggest a would-be censor can bring a First Amendment
overbreadth challenge because a regulation chills its
efforts to prohibit others from speaking.
B.
We turn now to the merits of the Platforms’ First
Amendment claim. As always, we start with the original
public meaning of the Constitution’s text. We need not
tarry long here because the Platforms—by pointing to no
evidence whatsoever on this point—do not contend that the
First Amendment’s history and original understanding
provide any basis for invalidating Section 7.
The First Amendment prevents the government from
enacting laws “abridging the freedom of speech, or of the
press.” U.S. Const. amend. I; see Gitlow v. New York, 268
U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925) (incorporating
this right against the States). At the Founding and
“[f]or most of our history, speech and press freedoms
entailed two common-law rules—first, a prohibition on
prior restraints and, second, a privilege of speaking in
good faith on matters of public concern.” Jud Campbell,
The Emergence of Neutrality, 131 Yale L.J. 861, 874-75
(2022). The first rule was central to the Speech Clause as
originally understood, because the “core abuse against
which it was directed was the scheme of licensing laws
implemented by the monarch and Parliament to contain
the ‘evils’ of the printing press in 16th-and 17-century
England.” Thomas v. Chicago Park Dist., 534 U.S. 316,
320, 122 S. Ct. 775, 151 L. Ed. 2d 783 (2002). For example,
21a
Appendix A
the Printing Act of 1662 required all printers to obtain
a license and then “required that all works be submitted
for approval to a government official, who wielded broad
authority to suppress works that he found to be heretical,
seditious, schismatical, or offensive.” Ibid. (quotation
omitted).
Licensing schemes like the Printing Act generated
substantial opposition in both England and the American
colonies. They disappeared in both places by the 1720s. See
David S. Bogen, The Origins of Freedom of Speech and
Press, 42 Md. L. Rev. 429, 443-44 (1983). Thus, Blackstone
had this to say two decades before the First Amendment’s
ratification:
The liberty of the press is indeed essential to
the nature of a free state: but this consists in
laying no previous restraints upon publications,
and not in freedom from censure for criminal
matter when published. . . . To subject the
press to the restrictive power of a licenser, as
was formerly done, both before and since the
revolution, is to subject all freedom of sentiment
to the prejudices of one man, and make him the
arbitrary and infallible judge of all controverted
points in learning, religion, and government.
4 William Blackstone, Commentaries *151-52. Foundingera Americans similarly viewed the freedom from prior
restraints as a central component of the freedoms of
speech and the press. See Campbell, Emergence of
Neutrality, supra, at 875-76; see also, e.g., 3 Joseph Story,
22a
Appendix A
Commentaries on the Constitution § 1874 (1833) (“It is
plain, then, that the language of [the First A]mendment
imports no more, than that every man shall have a right
to speak, write, and print his opinions upon any subject
whatsoever, without any prior restraint . . . .”).
As originally understood, the First Amendment’s
Speech and Press Clauses also protected the freedom
to make well-intentioned statements of one’s thoughts,
particularly on matters of public concern. See generally
Jud Campbell, Natural Rights and the First Amendment,
127 Yale L.J. 246, 280-87 (2017). States recognized this
freedom before the First Amendment’s ratification. 5
The Anti-Federalists worked to protect it in the federal
Constitution. 6 And even the Federalists—who were
5. For example, in 1788, Chief Justice McKean of the Supreme
Court of Pennsylvania explained that “[t]he true liberty of the press
is amply secured by permitting every man to publish his opinions;
but it is due to the peace and dignity of society to enquire into the
motives of such publications, and to distinguish between those which
are meant for use and reformation, and with an eye solely to the public
good, and those which are intended merely to delude and defame.”
Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 325, 1 L. Ed. 155, 1 Dall.
319 (Pa. 1788). This statement illustrates both facets of the First
Amendment’s original public meaning. First, prior restraints were
prohibited, full stop: “[E]very man [may] publish his opinions.” Ibid.
Second, whether post-publication liability could be imposed depended
on whether an opinion was “meant for use and reformation . . . [or]
merely to delude and defame”—to use modern terminology, whether
the statement was made in good faith. Ibid.
6. See, e.g., Centinel No. 1, in 2 The Complete A nti-Federalist
136, 136 (Herbert J. Storing ed., 1981) (urging the People to demand
constitutional protection for “a right of freedom of speech”). Thomas
23a
Appendix A
generally less friendly to the freedom of speech—
recognized that the First Amendment protected this right.
See id. at 286; see also, e.g., 8 A nnals of Cong. 2148 (1798)
(statement of Rep. Harrison Gray Otis) (recognizing that
the First Amendment protects “the liberty of writing,
publishing, and speaking, one’s thoughts, under the
condition of being answerable . . . for false, malicious, and
seditious expressions, whether spoken or written”).
The Platforms neither challenge this understanding
of the First Amendment’s original meaning nor suggest
that Section 7 runs afoul of it. This apparent concession
is unsurprising. First, Section 7 does not operate as a
prior restraint on the Platforms’ speech—even if one
accepts their characterization of censorship as speech.
Recall Blackstone’s criticism of prior restraints: that they
“subject all freedom of sentiment to the prejudices of one
man, and make him the arbitrary and infallible judge of all
controverted points in learning, religion, and government.”
4 Blackstone, supra, at *151-52. The Platforms operate
“the modern public square,” Packingham, 137 S. Ct. at
1737, and it is they—not the government—who seek to
defend viewpoint-based censorship in this litigation.
Jefferson also wrote to James Madison—who later drafted the Bill of
Rights—that he thought the Constitution should ensure “[t]he people
shall not be deprived or abridged of their right to speak to write or
otherwise to publish any thing but false facts affecting injuriously
the life, property, or reputation of others or affecting the peace of
the confederacy with foreign nations.” Letter from Thomas Jefferson
to James Madison (Aug. 28, 1789), in 5 The Founders’ Constitution
129, 129-30 (Philip B. Kurland & Ralph Lerner eds., 1987).
24a
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Second, Section 7 does not prevent anyone from
expressing their good-faith opinions on matters of public
concern. Precisely the opposite: Section 7 protects Texans’
ability to freely express a diverse set of opinions through
one of the most important communications mediums
used in that State. And it leaves the Platforms free to
similarly opine: They can still say whatever they want
(or decline to say anything) about any post by any user.
Moreover, Section 7’s exceptions—where viewpoint-based
censorship is still permitted, like certain specific threats
of violence—contemplate malicious, bad-faith speech
not protected by the First Amendment as originally
understood. See Campbell, Emergence of Neutrality,
supra, at 878. So Section 7’s carveouts do nothing to
impugn its constitutionality under the First Amendment’s
original meaning.
C.
Rather than mount any challenge under the original
public meaning of the First Amendment, the Platforms
instead focus their attention on Supreme Court doctrine.
And under that doctrine, the Platforms contend, Section 7
somehow burdens their right to speak. How so, you might
wonder? Section 7 does nothing to prohibit the Platforms
from saying whatever they want to say in whatever way
they want to say it. Well, the Platforms contend, when a
user says something using one of the Platforms, the act
of hosting (or rejecting) that speech is the Platforms’ own
protected speech. Thus, the Platforms contend, Supreme
Court doctrine affords them a sort of constitutional
privilege to eliminate speech that offends the Platforms’
censors.
25a
Appendix A
We reject the Platforms’ efforts to reframe their
censorship as speech. It is undisputed that the Platforms
want to eliminate speech—not promote or protect it. And
no amount of doctrinal gymnastics can turn the First
Amendment’s protections for free speech into protections
for free censoring. We (1) explain the relevant doctrine
and Supreme Court precedent. Then we (2) hold this
precedent forecloses the Platforms’ argument that Section
7 is unconstitutional.
1.
Supreme Court precedent instructs that the freedom
of speech includes “the right to refrain from speaking
at all.” Wooley v. Maynard, 430 U.S. 705, 714, 97 S. Ct.
1428, 51 L. Ed. 2d 752 (1977); see also W. Va. State Bd.
of Educ. v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87
L. Ed. 1628 (1943). So the State may not force a private
speaker to speak someone’s else message. See Wooley,
430 U.S. at 714.
But the State can regulate conduct in a way that
requires private entities to host, transmit, or otherwise
facilitate speech. Were it otherwise, no government could
impose nondiscrimination requirements on, say, telephone
companies or shipping services. But see 47 U.S.C. § 202(a)
(prohibiting telecommunications common carriers from
“mak[ing] any unjust or unreasonable discrimination in
charges, practices, classifications, regulations, facilities,
or services”). Nor could a State create a right to distribute
leaflets at local shopping malls. But see PruneYard
Shopping Ctr. v. Robins, 447 U.S. 74, 88, 100 S. Ct.
26a
Appendix A
2035, 64 L. Ed. 2d 741 (1980) (upholding a California law
protecting the right to pamphleteer in privately owned
shopping centers). So First Amendment doctrine permits
regulating the conduct of an entity that hosts speech,
but it generally forbids forcing the host itself to speak or
interfering with the host’s own message.
Five Supreme Court cases elucidate this distinction.
The first is Miami Herald. It involved a Florida law
providing that when a newspaper article criticizes the
character or record of a political candidate, the newspaper
must offer the candidate equal space in the paper to reply
to the criticism. 418 U.S. at 244. The Court held that this
“right-of-reply” law violated the First Amendment. Id.
at 258.
The Court explained that the law interfered with
the newspaper’s speech by imposing a content-based
penalty on it. See id. at 256 (“The Florida statute exacts
a penalty on the basis of the content of a newspaper.”). If
the newspaper chose to speak about most topics, there
was no penalty—but if it spoke critically about a political
candidate, it was penalized with the “cost in printing and
composing time and materials” necessary to give the
candidate a free and equally prominent response column.
Ibid. Moreover, the reply would “tak[e] up space that
could be devoted to other material the newspaper may
have preferred to print.” Ibid. This interference would
disincentivize the newspaper’s speech: Faced with these
penalties, “editors might well conclude that the safe course
is to avoid controversy” and reduce coverage of political
candidates altogether. Id. at 257.
27a
Appendix A
The Court also concluded that the right-of-reply
law impermissibly compelled the newspaper to speak
messages it opposed. As the Court explained:
A newspaper is more than a passive receptacle
or conduit for news, comment, and advertising.
The choice of material to go into a newspaper,
and the decisions made as to limitations on the
size and content of the paper, and treatment of
public issues and public officials—whether fair
or unfair—constitute the exercise of editorial
control and judgment.
Id. at 258. Because a newspaper prints a curated set of
material selected by its editors, everything it publishes
is, in a sense, the newspaper’s own speech. And the
newspaper has a right to “editorial control and judgment”
over its speech. Ibid. Newspapers thus cannot be
compelled to “publish that which reason tells them should
not be published.” Id. at 256 (quotation omitted).
The second case is PruneYard. That case involved a
group of high school students who sought to distribute
pamphlets and solicit signatures at a local shopping mall.
The California Supreme Court held that California law
protected the right to “speech and petitioning, reasonably
exercised, in shopping centers even when the centers are
privately owned.” 447 U.S. at 78 (quotation omitted). The
mall objected on First Amendment grounds, arguing
that “a private property owner has a First Amendment
right not to be forced by the State to use his property as
a forum for the speech of others.” Id. at 85.
28a
Appendix A
The Supreme Court rejected the shopping mall’s
challenge. It found the state law exacted no penalty on the
basis of the mall’s speech, and the mall could “expressly
disavow any connection with the [pamphleteers’] message
by simply posting signs in the area where the speakers
or handbillers st[oo]d.” Id. at 87-88. Nor did California
law impermissibly compel the mall itself to speak. To
the contrary, because the mall was open to anyone,
“[t]he views expressed by members of the public in passing
out pamphlets or seeking signatures . . . will not likely be
identified with those of the owner.” Id. at 87. The Court
also emphasized California’s neutrality among viewpoints:
Because “no specific message is dictated by the State to be
displayed on appellants’ property,” there was “no danger
of governmental discrimination for or against a particular
message.” Ibid.
The mall relied in part on Miami Herald, but the
PruneYard Court easily found that case inapplicable. The
Court stated that Miami Herald “rests on the principle
that the State cannot tell a newspaper what it must print,”
and it emphasized the “danger in [Miami Herald] that
the statute would dampen the vigor and limit the variety
of public debate by deterring editors from publishing
controversial political statements that might trigger the
application of the statute.” Id. at 88. Those concerns were
“obviously . . . not present” in PruneYard. Ibid.
The third case is PG&E. A utility company, PG&E,
had a longstanding practice of including a monthly
newsletter in its billing envelopes. 475 U.S. at 5 (plurality
op.). “In appearance no different from a small newspaper,”
29a
Appendix A
the newsletter included political editorials and stories
on matters of public interest alongside tips on energy
conservation and information about utility services. Id.
at 5, 8. Concerned that the expense of PG&E’s political
speech was falling on customers, the California Public
Utilities Commission (“Commission”) decided to apportion
the billing envelopes’ “extra space”—that is, the space
occupied by the company’s newsletter—and permit a
third-party group representing PG&E ratepayers to use
that space for its opposing messages four months per
year. Id. at 5-6. PG&E objected, arguing that the First
Amendment prevented the Commission from forcing it to
include an adverse party’s speech in its billing envelopes.
The Supreme Court ruled for PG&E. A plurality held
that the Commission’s order both interfered with PG&E’s
own speech and impermissibly forced it to associate with
the views of other speakers. As in Miami Herald, the
“one-sidedness” of the Commission’s order penalized and
disincentivized PG&E’s expression by awarding space
only to those who disagreed with PG&E’s speech:
[B]ecause access is awarded only to those
who disag ree w ith appellant’s [PG&E’s]
views and who are hostile to appellant’s
interests, appellant must contend with the
fact that whenever it speaks out on a given
issue, it may be forced—at [a third-party’s]
discretion—to help disseminate hostile views.
Appellant “might well conclude” that, under
these circumstances, “the safe course is to
avoid controversy,” thereby reducing the free
30a
Appendix A
flow of information and ideas that the First
Amendment seeks to promote.
Id. at 14 (quoting Miami Herald, 418 U.S. at 257).
The plurality also found that the Commission’s order
impermissibly “require[d] [PG&E] to associate with
speech with which [it] may disagree.” Id. at 15. Because
the third party could “use the billing envelopes to discuss
any issues it chooses,” PG&E “may be forced either to
appear to agree . . . or to respond.” Ibid. “That kind of
forced response is antithetical to the free discussion that
the First Amendment seeks to foster.” Id. at 16.
Finally, the PG&E plurality found PruneYard
distinguishable for two reasons. First, PruneYard did not
involve a concern that the challenged law “might affect
the shopping center owner’s exercise of his own right to
speak.” Id. at 12. Second, the right of access at issue in
PruneYard was not content-based. Ibid.7
7. Justice Marshall provided the fifth vote to invalidate
the Commission’s order. See PG&E, 475 U.S. at 21 (Marshall, J.,
concurring in the judgment). He emphasized two ways in which the
Commission’s order was different from the law upheld in PruneYard.
First, the right of access created by the Commission was
more intrusive than the one upheld in PruneYard. That’s because
the shopping mall owner in PruneYard had voluntarily opened his
property up to the public, whereas PG&E “has never opened up its
billing envelope to the use of the public.” Id. at 22.
Second, in PruneYard, the speech of the shopping mall owner
was not “hindered in the slightest” by the public’s pamphleteering
right. Id. at 24. PG&E, by contrast, involved “a forum of inherently
31a
Appendix A
The fourth case is Hurley. GLIB, an organization of
Irish-American gay, lesbian, and bisexual individuals,
sought to march in a St. Patrick’s Day parade in Boston.
515 U.S. at 561. The parade was organized by a private
group, the South Boston Allied War Veterans Council
(“Council”). Id. at 560. The Council refused to admit
GLIB, citing “traditional religious and social values.”
Id. at 562 (quotation omitted). But the Supreme Judicial
Court of Massachusetts held that the parade was a public
accommodation under state law, so the Council had to let
GLIB participate. Id. at 564. The Council argued that this
application of Massachusetts’s public accommodation law
violated the First Amendment, and the Supreme Court
agreed. Id. at 566.
The Court concluded that the parade was a “form of
expression” that receives First Amendment protection.
Id. at 568. That’s because “[r]ather like a composer, the
Council selects the expressive units of the parade from
potential participants, and though the score may not
produce a particularized message, each contingent’s
expression in the Council’s eyes comports with what
merits celebration on that day.” Id. at 574. And it didn’t
matter that the Council was “rather lenient in admitting
participants,” because “a private speaker does not forfeit
constitutional protection simply by combining multifarious
voices, or by failing to edit their themes to isolate an exact
limited scope,” such that the State’s appropriation of that forum for
a third party’s use necessarily curtailed PG&E’s ability to speak in
that forum. Ibid. And this interference with PG&E’s speech could not
be justified by the State’s goal of “subsidiz[ing] . . . another speaker
chosen by the State.” Ibid.
32a
Appendix A
message as the exclusive subject matter of the speech.”
Id. at 569-70.
The cornerstone of the Court’s reasoning was that
the parade sponsors were “intimately connected” to
the message communicated by the parade. Id. at 576.
This intimate connection was crucial, the Court held,
because forcing the sponsors to include a particular
float was tantamount to forcing the sponsors to speak:
“[W]hen dissemination of a view contrary to one’s own
is forced upon a speaker intimately connected with the
communication advanced, the speaker’s right to autonomy
over the message is compromised.” Id. at 576; see also id.
at 573 (emphasizing that “a speaker has the autonomy
to choose the content of his own message,” including by
“decid[ing] what not to say”) (quotation omitted).
The final case that’s particularly relevant to our
discussion is Rumsfeld v. Forum for Academic and
Institutional Rights, Inc., 547 U.S. 47, 126 S. Ct. 1297,
164 L. Ed. 2d 156 (2006). Certain law schools sought to
restrict military recruiting on their campuses because
of the military’s policies on sexual orientation. Id. at 51.
Congress responded by enacting the Solomon Amendment,
which denied federal funding to schools that did not give
military recruiters “access to students that is at least
equal in quality and scope to the access provided other
potential employers.” Id. at 54 (quotation omitted). An
organization of law schools sued, arguing that the Solomon
Amendment violated the First Amendment. The Supreme
Court disagreed. It unanimously held that “the First
Amendment would not prevent Congress from directly
33a
Appendix A
imposing the Solomon Amendment’s access requirement,”
and the statute thus did not place an unconstitutional
condition on the receipt of federal funds. Id. at 60.
The Court first held that the Solomon Amendment did
not impermissibly force the law schools to speak. Id. at
61-62. The Court recognized that “recruiting assistance
provided by the schools often includes elements of
speech”—like sending emails or posting bulletin board
notices on the recruiter’s behalf. Id. at 61. But the Court
determined that this speech was “plainly incidental to
the Solomon Amendment’s regulation of conduct” and
was nothing like a “Government-mandated pledge or
motto” as in Barnette and Wooley. Id. at 62. Congress
could therefore compel this “incidental” speech without
violating the First Amendment. Ibid.
The Court then held that the Solomon Amendment
did not impermissibly interfere with the schools’ own
speech, distinguishing Miami Herald, PG&E, and Hurley.
Id. at 63-65. It acknowledged that those three cases
“limited the government’s ability to force one speaker to
host or accommodate another speaker’s message.” Id. at
63. But it then explained that these “compelled-speech
violation[s] . . . resulted from the fact that the complaining
speaker’s own message was affected by the speech it
was forced to accommodate.” Ibid.; see also id. at 63-64
(explaining how the challenged laws “interfere[d] with
a speaker’s desired message” in Miami Herald, PG&E,
and Hurley). In Rumsfeld, by contrast, “accommodating
the military’s message [did] not affect the law schools’
speech, because the schools [were] not speaking when they
34a
Appendix A
host interviews and recruiting receptions.” Id. at 64. That
was true despite the risk that students might mistakenly
interpret the law schools’ conduct as sending the message
that they see nothing wrong with the military’s policies.
Id. at 64-65. In sum, even though it required law schools
to host and accommodate others’ speech, the Solomon
Amendment was constitutional because it “neither
limit[ed] what law schools may say nor require[d] them
to say anything.” Id. at 60.
2.
Under these precedents, a speech host must make one
of two showings to mount a First Amendment challenge.
It must show that the challenged law either (a) compels
the host to speak or (b) restricts the host’s own speech.
The Platforms cannot make either showing. And (c) the
Platforms’ counterarguments are unpersuasive.
a.
Let’s start with compelled speech. In Miami Herald,
the Supreme Court held that Florida’s right-of-reply law
was unconstitutional because it compelled newspapers
to speak. Crucially, the Court emphasized that “[a]
newspaper is more than a passive receptable or conduit
for news, comment, or advertising.” Miami Herald, 418
U.S. at 258. Rather, a newspaper curates and publishes
a narrow “choice of material” in accordance with the
“editorial control and judgment” of its editors. Ibid.
Thus, when a newspaper affirmatively chooses to publish
something, it says that particular speech—at the very
35a
Appendix A
least—should be heard and discussed. So forcing a
newspaper to run this or that column is tantamount to
forcing the newspaper to speak.
The Platforms are nothing like the newspaper
in Miami Herald. Unlike newspapers, the Platforms
exercise virtually no editorial control or judgment.
The Platforms use algorithms to screen out certain
obscene and spam-related content. 8 And then virtually
everything else is just posted to the Platform with zero
editorial control or judgment. “Something well north of
99% of th[is] content . . . never gets reviewed further.
The content on a site is, to that extent, invisible to the
[Platform].” NetChoice, LLC v. Moody, 546 F. Supp. 3d
1082, 1092 (N.D. Fla. 2021). Thus the Platforms, unlike
newspapers, are primarily “conduit[s] for news, comment,
and advertising.” Miami Herald, 418 U.S. at 258. 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., 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”).
8. The Platforms have disclosed little about their algorithms
in this appeal, other than suggesting that they “often moderate
certain policy-violating content before users see it.” The Platforms
never suggest their algorithms somehow exercise substantive,
discretionary review akin to newspaper editors.
36a
Appendix A
The Platforms’ own representations confirm this. 9
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.”10
They’ve told the public that they “may not monitor,” “do
not endorse,” and “cannot take responsibility for” the
content on their Platforms.11 They’ve told Congress that
their “goal is to offer a platform for all ideas.”12 And they’ve
9. To the extent that these representations vary between
Platforms, that further cuts against the propriety of this facial,
pre-enforcement challenge. Cf. supra Part III.A. To establish
associational standing, the plaintiff trade associations asserted in
the district court that this suit “does not require individualized facts
about any particular covered social media platform.” ROA.645; see
also Tex. Ass’n of Mfrs. v. U.S. Consumer Prod. Safety Comm’n,
989 F.3d 368, 377 (5th Cir. 2021) (stating the relevant rule). So the
Platforms may not now rely on individualized facts to claim that,
for example, one Platform operates like a newspaper even if the
others don’t.
10. Ravi Somaiya, How Facebook Is Changing the Way Its
Users Consume Journalism, N.Y. Times, Oct. 26, 2014, https://nyti.
ms/3ommZXb.
11. Twitter, Terms of Service § 3, https://twitter.com/en/tos
(last visited Aug. 6, 2022) [hereinafter Twitter Terms]; see also
Facebook, Terms of Service § 4.3, https://www.facebook.com/terms.
php (last visited Aug. 6, 2022) [hereinafter Facebook Terms] (“We
are not responsible for [users’] actions or conduct . . . or any content
they share.”); YouTube, Terms of Service, https://www.youtube.com/
static?template=terms (last visited Aug. 6, 2022) (“Content is the
responsibility of the person or entity that provides it to [YouTube].”).
12. Online Platforms and Market Power, Part 6: Hearing
Before the Subcomm. on Antitrust, Com. [*41] and Admin. Law of
the H. Comm. on the Judiciary, 116th Cong. 33 (2020) (testimony of
Mark Zuckerberg, CEO, Facebook, Inc.).
37a
Appendix A
told courts—over and over again—that they simply
“serv[e] as conduits for other parties’ speech.”13
It is no answer to say, as the Platforms do, that an
observer might construe the act of hosting speech as an
expression of support for its message. That was the precise
contention the Court rejected in both PruneYard and
Rumsfeld: Neither the shopping mall nor the law schools
wanted to endorse the hosted speech. The Rumsfeld
Court dismissed that concern out of hand because even
schoolchildren know the difference between sponsoring
speech and allowing it. See 547 U.S. at 65 (citing Bd. of
Educ. of Westside Cmty. Schs. (Dist. 66) v. Mergens,
496 U.S. 226, 250, 110 S. Ct. 2356, 110 L. Ed. 2d 191
(1990)). That’s precisely why even the Platforms concede
that “objective observer[s]” would not “conclude that
[Platforms] intended . . . to promote terrorism” when they
host terrorist content. Motion to Dismiss at 23, Gonzalez
v. Twitter, Inc., No. 4:16-cv-03282 (N.D. Cal. Jan. 13, 2017).
Recognizing that their compelled-speech analogy to
newspapers is a stretch, the Platforms turn to parades
and the Hurley case. The Platforms contend that Section
7 forces them to host speech that’s inconsistent with their
corporate “values.” But of course, the Platforms do not
contend that they carefully curate users’ speech the way
a parade sponsor or composer “selects . . . expressive
13. Brief for Appellees at 1, Klayman v. Zuckerberg, No. 13-7017
(D.C. Cir. Oct. 25, 2013); see also, e.g., Notice of Motion and Motion
to Dismiss at 10 n.5, Fields v. Twitter, Inc., No. 3:16-cv-00213 (N.D.
Cal. Apr. 6, 2016) (stating Twitter is “a service provider acting as a
conduit for huge quantities of third-party speech”).
38a
Appendix A
units . . . from potential participants.” Hurley, 515 U.S.
at 568. Nor do they suggest that they are “intimately
connected with the communication” Section 7 requires
them to host. Id. at 576. The Platforms instead contend
that their censorship is protected because Hurley creates
a freewheeling right for speech hosts to discriminate
against messages they don’t like.
Hurley said nothing of the sort. The Court instead
carefully limited its holding to a speech host (like a parade
organizer or composer) who is “intimately connected”
with the hosted speech (like a parade or a symphony).
Ibid. And the Platforms are nothing like such hosts. They
don’t pick content to “mak[e] some sort of collective point,”
even an abstract one like “what merits celebration on
[St. Patrick’s] day.” Id. at 568, 574. Rather, 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 as noted above, virtually none of this
content is meaningfully reviewed or edited in any way.
Nor can the Platforms point to the content they
do censor and claim that makes them akin to parade
organizers. In Rumsfeld, for example, the law schools
argued that their denial of access to military recruiters
was protected expressive conduct because it “expressed”
the schools’ disagreement with the military. 547 U.S. at
66. But the Court held that the denial of access was not
inherently expressive, because such conduct would only
be understood as expressive in light of the law schools’
speech explaining it. See ibid. Otherwise, observers
wouldn’t know that the denial of access stemmed from an
39a
Appendix A
ideological disagreement—they might instead conclude,
for example, that “the military recruiters decided for
reasons of their own that they would rather interview
someplace else.” Ibid.
The same reasoning applies here.14 If a Platform
censors a user’s post, the expressive quality of that
censorship arises only from the Platform’s speech (whether
on an individualized basis or in its terms of service)
stating that the Platform chose to censor the speech and
explaining how the censorship expresses the Platform’s
views. Otherwise, as in Rumsfeld, an observer might
just as easily infer that the user himself deleted the post
and chose to speak elsewhere. In terms of the conduct’s
inherent expressiveness, there is simply no plausible
way to distinguish the targeted denial of access to only
military recruiters in Rumsfeld from the viewpoint-based
14. To be clear, unlike in Rumsfeld, the Platforms in this case
never argue that their acts of censorship constitute “expressive
conduct.” Cf., e.g., Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct.
2533, 105 L. Ed. 2d 342 (1989) (noting that expressive conduct may
be protected by the First Amendment if the actor both has “an
intent to convey a particularized message” and “the likelihood [is]
great that the message would be understood by those who viewed
it” (quotation omitted)). In fact, the phrase “expressive conduct”
never even appears in their brief before our court. Compare infra
at 82 n.41 (noting that the Platforms made such an argument before
the Eleventh Circuit). But to the extent any such argument is latent
in their reliance on Hurley or their claim of protected “editorial
discretion,” it’s plainly foreclosed by the Supreme Court’s reasoning
in Rumsfeld. Moreover, the Platforms never suggest that their
censorship could “convey a particularized message.” See Johnson,
491 U.S. at 404.
40a
Appendix A
censorship regulated by HB 20. Section 7 does not compel
the Platforms to speak.
b.
Nor does it do anything to prohibit the Platforms from
speaking. That’s for three independent reasons.
First, the Platforms have virtually unlimited space for
speech, so Section 7’s hosting requirement does nothing
to prohibit the Platforms from saying what they want to
say. Contrariwise, both Miami Herald and PG&E involved
“forum[s] of inherently limited scope”—a newspaper and
newsletter with significant space constraints. PG&E, 475
U.S. at 24 (Marshall, J., concurring in the judgment). So
when the State appropriated space in the newspaper or
newsletter for a third party’s use, it necessarily curtailed
the owner’s ability to speak in its own forum. See Miami
Herald, 418 U.S. at 256 (“[T]he compelled printing . . .
tak[es] up space that could be devoted to other material
the newspaper may have preferred to print.”); see also
Rumsfeld, 547 U.S. at 64 (explaining the results in Miami
Herald and PG&E in these terms). Accordingly, when
a “speaker’s own message [is] affected by the speech it
[is] forced to accommodate,” the speaker may invoke the
First Amendment to protect their own ability to speak.
Rumsfeld, 547 U.S. at 63. By contrast, “space constraints
on digital platforms are practically nonexistent”—unlike
with newspapers, cable companies, and many of the other
entities the Platforms invoke by analogy. Knight, 141 S.
Ct. at 1226 (Thomas, J., concurring). For this reason, the
Platforms can host users’ speech without giving up their
power or their right to speak their own message(s).
41a
Appendix A
Second, the Platforms are free to say whatever they
want to distance themselves from the speech they host.
The Supreme Court has been very careful to limit forcedaffiliation claims by speech hosts. After all, any speech
host could always object that its accommodation for
speech might be confused for a coerced endorsement of
it. But the Court rejected that forced-affiliation argument
in PruneYard, where the shopping mall owner was not
required to affirm the pamphleteers’ expression in any
way, and was “free to publicly dissociate [himself] from
the views of the speakers or handbillers.” 447 U.S. at 88.
Similarly, in Rumsfeld, the law schools argued “that if
they treat military and nonmilitary recruiters alike . . .
they could be viewed as sending the message that they
see nothing wrong with the military’s policies.” 547 U.S.
at 64-65. But the Supreme Court easily rejected this
argument, because “[n]othing about recruiting suggests
that law schools agree with any speech by recruiters, and
nothing in the Solomon Amendment restricts what the
law schools may say about the military’s policies.” Id. at
65. Rather, to win a forced-affiliation claim, the speech
host must show that it’s “intimately connected with the
communication” and hence cannot dissociate itself from
it. Hurley, 515 U.S. at 576. Here, the Platforms remain
free to expressly disavow, distance themselves from, or
say whatever they want about any expression they host.
For example, Platforms can add addenda or disclaimers—
containing their own speech—to users’ posts. And many
of them already do this, thus dramatically underscoring
that Section 7 prohibits none of their speech.
42a
Appendix A
Third, Section 7 does not impose a content-based
penalty on the Platforms’ speech. Recall that the right-ofreply law in burdened newspapers with the duty to publish
a response column if they published an article questioning
the character or record of a political candidate. 418 U.S.
at 244. As the PG&E plurality explained, this imposed a
content-based penalty on the newspaper’s speech in two
distinct senses: First, the penalty was “triggered by a
particular category of newspaper speech”; and second,
access “was awarded only to those who disagreed with
the newspaper’s views.” 475 U.S. at 13; see also id. at 14
(explaining that the Commission’s order in PG&E was
content-based in the second sense). Here, by contrast, no
category of Platform speech can trigger any additional
duty—or obviate an existing duty—under Section 7.
And Section 7 does not create a special privilege for
those who disagree with the Platforms’ views. Cf. id. at
14 (billing envelope space was awarded only to a single
entity formed to oppose PG&E’s views). Rather, it gives
the exact same protection to all Platform users regardless
of their viewpoint.
c.
The Platforms do not seriously dispute any of this.
Instead, they argue that Section 7 interferes with their
speech by infringing their “right to exercise editorial
discretion.” They reason as follows. Premise one is that
“editorial discretion” is a separate, freestanding category
of First-Amendment-protected expression. Premise two is
that the Platforms’ censorship efforts constitute “editorial
discretion.” Conclusion: Section 7 burdens the Platforms’
43a
Appendix A
First Amendment rights by obstructing their censorship
efforts.
Both premises in that syllogism are flawed. Premise
one is faulty because the Supreme Court’s cases do not
carve out “editorial discretion” as a special category of
First-Amendment-protected expression. Instead, the
Court considers editorial discretion as one relevant
consideration when deciding whether a challenged
regulation impermissibly compels or restricts protected
speech. Take, for example, Turner Broadcasting System,
Inc. v. FCC, 512 U.S. 622, 114 S. Ct. 2445, 129 L. Ed. 2d
497 (1994) (“Turner I”). There the Court noted a cable
operator “exercis[es] editorial discretion over which
stations or programs to include in its repertoire.” Id. at
636 (quotation omitted). For this reason, among others,
the Court concluded that selecting a limited repertoire of
cable channels to transmit constitutes First-Amendmentprotected speech. See id. at 636-37. Similarly, Miami
Herald emphasized newspapers’ “exercise of editorial
control and judgment” to support its holding that their
close affiliation with the speech they publish gives them
the right not to publish “that which reason tells them
should not be published.” 418 U.S. at 256, 258 (quotation
omitted). But both cases treated editorial discretion as a
relevant consideration supporting their legal conclusions
about the presence or absence of protected speech.
Neither case implied that editorial discretion is itself
a freestanding category of constitutionally protected
expression.15
15. The Platforms’ other cases ostensibly supporting premise
one are even farther afield. Manhattan Community Access Corp.
44a
Appendix A
Accordingly, the Platforms cannot invoke “editorial
discretion” as if uttering some sort of First Amendment
talisman to protect their censorship. Were it otherwise,
the shopping mall in PruneYard and law schools in
Rumsfeld could have changed the outcomes of those
cases by simply asserting a desire to exercise “editorial
discretion” over the speech in their forums. Instead, the
Platforms must show that Section 7 either coerces them to
speak or interferes with their speech. Of course, how the
Platforms do or don’t exercise editorial control is relevant
to this inquiry, as it was in Miami Herald and Turner I.
But the Platforms can’t just shout “editorial discretion!”
and declare victory.16
v. Halleck, 139 S. Ct. 1921, 204 L. Ed. 2d 405 (2019), discussed the
constitutional limits on editorial discretion in public forums and
described the issue in this case as “[a] distinct question not raised
here.” Id. at 1931 & n.2. And Arkansas Educational Television
Commission v. Forbes, 523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed.
2d 875 (1998), simply reiterated Turner I’s conclusion that cable
operators’ selection and presentation of programming is speech for
First Amendment purposes. Id. at 674.
16. Our esteemed colleague in dissent makes a similar
argument with a different label. The dissent reads Miami Herald
to protect “two levels of publisher speech”: the published speech
itself as well as “the selection process” (or “publishing process”)
used to choose that speech. Post, at 5-6, 11. And it concludes that
Section 7 impermissibly interferes with the Platforms’ publishing
process. Id. at 11.
It’s of course true that the right to speak generally entails the
right to select what to speak. But asserting that Section 7 obstructs
the Platforms’ “selection process” begs the question whether
the Platforms’ censorship is protected speech at all. If it’s not,
45a
Appendix A
Premise two of the Platforms’ syllogism is also faulty.
Even assuming “editorial discretion” is a freestanding
category of First-Amendment-protected expression,
the Platforms’ censorship doesn’t qualify. Curiously, the
Platforms never define what they mean by “editorial
discretion.” (Perhaps this casts further doubt on the
wisdom of recognizing editorial discretion as a separate
category of First-Amendment-protected expression.)
Instead, they simply assert that they exercise protected
editorial discretion because they censor some of the
content posted to their Platforms and use sophisticated
algorithms to arrange and present the rest of it. But
whatever the outer bounds of any protected editorial
discretion might be, the Platforms’ censorship falls outside
it. That’s for two independent reasons.
First, an entity that exercises “editorial discretion”
accepts reputational and legal responsibility for the
content it edits. In the newspaper context, for instance,
the Court has explained that the role of “editors and
editorial employees” generally includes “determin[ing] the
news value of items received” and taking responsibility
for the accuracy of the items transmitted. Associated
Press v. NLRB, 301 U.S. 103, 127, 57 S. Ct. 650, 81 L. Ed.
953 (1937). And editorial discretion generally comes with
concomitant legal responsibility. For example, because of
“a newspaper’s editorial judgments in connection with an
then there’s no First Amendment right for censors to select their
targets—just as there’s no First Amendment right for law schools
to select their recruiters, no First Amendment right for shopping
malls to select their pamphleteers, and no First Amendment right
for telephone companies to select which calls to drop.
46a
Appendix A
advertisement,” it may be held liable “when with actual
malice it publishes a falsely defamatory” statement in
an ad. Pittsburgh Press Co. v. Pittsburgh Comm’n on
Human Rels., 413 U.S. 376, 386, 93 S. Ct. 2553, 37 L. Ed.
2d 669 (1973). But the Platforms strenuously disclaim any
reputational or legal responsibility for the content they
host. See supra Part III.C.2.a (quoting the Platforms’
adamant protestations that they have no responsibility
for the speech they host); infra Part III.D (discussing the
Platforms’ representations pertaining to 47 U.S.C. § 230).
Second, editorial discretion involves “selection and
presentation” of content before that content is hosted,
published, or disseminated. See Ark. Educ. Television
Comm’n v. Forbes, 523 U.S. 666, 674, 118 S. Ct. 1633, 140
L. Ed. 2d 875 (1998); see also Miami Herald, 418 U.S.
at 258 (a newspaper exercises editorial discretion when
selecting the “choice of material” to print). The Platforms
do not choose or select material before transmitting
it: They engage in viewpoint-based censorship with
respect to a tiny fraction of the expression they have
already disseminated. The Platforms offer no Supreme
Court case even remotely suggesting that ex post
censorship constitutes editorial discretion akin to ex
ante selection.17 They instead baldly assert that “it is
constitutionally irrelevant at what point in time platforms
17. The Platforms claim Horton v. City of Houston, 179 F.3d 188
(5th Cir. 1999), recognized First Amendment rights for organizations
that “do not pre-screen submitted programs.” Id. at 190. Horton is
wholly irrelevant. It involved a public forum—a public access cable
channel—and concerned the First Amendment rights of a different
party seeking access to the forum. See id. at 190-91.
47a
Appendix A
exercise editorial discretion.” Red Br. at 25. Not only is
this assertion unsupported by any authority, but it also
illogically equates the Platforms’ ex post censorship with
the substantive, discretionary, ex ante review that typifies
“editorial discretion” in every other context.18
In sum, even if “editorial discretion” is a protected
legal category, it’s far from clear why (even viewpointagnostic) content arrangement and (even infrequent and
18. Our esteemed colleague in dissent suggests that the timing
of the Platforms’ censorship doesn’t matter because censorship
decisions “can only be made, as a practical matter, after the
appearance of the content on the Platform.” Post, at 13. The dissent’s
factual premise is incorrect: Online platforms can and do moderate
submissions before transmitting them. For example, the New York
Times moderates online comments on its articles before posting
them. See The Comments Section, N.Y. Times, https://help.nytimes.
com/hc/en-us/articles/115014792387-The-Comments-Section (last
visited Aug. 6, 2022). That’s arguably the same form of ex ante
curation that newspapers use for other material they publish and
that enjoys constitutional protection under Miami Herald.
If the Platforms wanted the same protections, they could’ve used
the same ex ante curation process. Early online forums and message
boards often preapproved all submissions before transmission. See,
e.g., Stratton Oakmont v. Prodigy Servs. Co., 1995 N.Y. Misc. LEXIS
229, 1995 WL 323710, at *3 (N.Y. Sup. Ct. May 24, 1995) (noting
Prodigy’s early policy of “manually reviewing all messages prior to
posting”). Later on, the Platforms made a judgment that jettisoning
editorial discretion to allow instantaneous transmission would make
their Platforms more popular, scalable, and commercially successful.
The Platforms thus disclaimed ex ante curation—precisely because
they wanted users to speak without editorial interference. That
decision has consequences. And it reinforces that the users are
speaking, not the Platforms.
48a
Appendix A
ex post) censorship should be the criteria for qualification.
And in any event, the Supreme Court has never recognized
“editorial discretion” as a freestanding category of FirstAmendment-protected expression. Rather, the applicable
inquiry is whether Section 7 forces the Platforms to speak
or interferes with their speech. Section 7 does neither of
those things. It therefore passes constitutional muster.
D.
We have no doubts that Section 7 is constitutional.
But even if some were to remain, 47 U.S.C. § 230 would
extinguish them. Section 230 provides that the Platforms
“shall [not] be treated as the publisher or speaker” of
content developed by other users. Id. § 230(c)(1). Section
230 reflects Congress’s judgment that the Platforms
do not operate like traditional publishers and are not
“speak[ing]” when they host user-submitted content.
Congress’s judgment reinforces our conclusion that the
Platforms’ censorship is not speech under the First
Amendment.
Congress enacted Section 230 in 1996 to ease
uncertainty regarding online platforms’ exposure to
defamation liability for the content they host. One leading
case, Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135
(S.D.N.Y. 1991), held that an online platform could not be
liable absent knowledge of the defamatory statements,
because it was a distributor that did not exercise
meaningful editorial control. See id. at 139-40. But then
a different case, Stratton Oakmont v. Prodigy Servs. Co.,
1995 N.Y. Misc. LEXIS 229, 1995 WL 323710 (N.Y. Sup.
49a
Appendix A
Ct. May 24, 1995), accepted an argument very similar to
the Platforms’ argument here. It noted that Prodigy’s
online platform had “content guidelines” prohibiting
certain obscene and offensive content. 1995 N.Y. Misc.
LEXIS 229, [WL] at *2. And Prodigy used an “automatic
software screening program” as well as manual review
“to delete notes from its computer bulletin boards” that
violated the guidelines. 1995 N.Y. Misc. LEXIS 22
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