Petitioners Brief — NetChoice, LLC, dba NetChoice, et al., Petitioners v. Ken Paxton, Attorney General of Texas

Supreme Court briefNov 30, 2023

Ask Donna

What actually matters in this document.

Text

No. 22-555

In the Supreme Court of the United States

NETCHOICE, LLC D/B/A NETCHOICE; AND

COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION

D/B/A CCIA, PETITIONERS

KEN PAXTON, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF TEXAS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONERS

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

COHN LLP

200 Massachusetts Ave., NW

Washington, DC 20001

*Supervised by

principals of the firm who (512) 693-8350

scott@lkcfirm.com

are members of the

Virginia bar.

Counsel for Petitioners

QUESTIONS PRESENTED

1. Whether Texas House Bill 20’s content-moderation

restrictions comply with the First Amendment.

2. Whether Texas House Bill 20’s individualizedexplanation requirements comply with the First

Amendment.

(i)

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.

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.

iii

TABLE OF CONTENTS

Questions Presented .......................................................... i

Parties to the Proceeding ................................................. ii

Corporate Disclosure Statement ..................................... ii

Table of Contents ............................................................. iii

Table of Authorities .......................................................... v

Introduction....................................................................... 1

Opinions Below .................................................................. 3

Jurisdiction ........................................................................ 3

Constitutional and Statutory Provisions Involved ......... 3

Statement .......................................................................... 4

A. Factual background ......................................... 4

B. Texas House Bill 20 ......................................... 7

C. Procedural history ......................................... 12

Summary of Argument ................................................... 13

Argument......................................................................... 18

I. The First Amendment protects the right of

private parties to make editorial choices in the

selection and presentation of speech. ................ 18

A. This Court’s First Amendment precedent

and the Nation’s history and tradition

protect

private

parties’

editorial

discretion. ....................................................... 18

B. The First Amendment’s protections for

private editorial discretion fully apply to

websites. ......................................................... 30

II. HB20 Section 7’s restrictions on viewpointbased editorial discretion violate the First

Amendment. ......................................................... 35

A. HB20 Section 7 triggers strict scrutiny by

compelling speech dissemination based on

viewpoint, content, and speaker. .................. 35

B. HB20 Section 7 fails strict scrutiny and any

other form of First Amendment scrutiny. ... 41

III. HB20 Section 2’s individualized-explanation

requirements violate the First Amendment. .... 46

A. HB20 Section 2 triggers strict scrutiny by

compelling speech and encumbering the

exercise of protected editorial discretion

based on content and speaker. ...................... 46

B. HB20 Section 2 fails strict scrutiny and any

form of First Amendment scrutiny. ............. 49

Conclusion ....................................................................... 54

TABLE OF AUTHORITIES

Page(s)

Cases

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ...... 4, 5, 13, 19-21, 23, 30, 31, 44, 45

Agency for Int’l Dev. v. All. for Open Soc’y

Int’l, Inc.,

140 S. Ct. 2082 (2020) ................................................... 30

Alexander v. United States,

509 U.S. 544 (1993) ....................................................... 24

Ams. for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) ....................................... 35, 41, 49

Am. Meat Inst. v. U.S. Dep’t of Agric.,

760 F.3d 18 (D.C. Cir. 2014) ........................................ 50

Ariz. Free Enter. Club v. Bennett,

564 U.S. 721 (2011) ....................................................... 15

Ark. Educ. Television Comm’n v. Forbes,

523 U.S. 666 (1998) ............................... 13, 19, 20, 25, 33

Ark. Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987) ................................................. 38, 39

Bartnicki v. Vopper,

532 U.S. 514 (2001) ....................................................... 19

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) ........................................... 18, 35, 50

Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam)............................... 15, 41

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) ....................................................... 24

Citizens United v. FEC,

558 U.S. 310 (2010) ................................................. 38, 40

City of Boerne v. Flores,

521 U.S. 507 (1997) ....................................................... 33

City of Cincinnati v. Discovery Network,

Inc.,

507 U.S. 410 (1993) ....................................................... 47

City of Lakewood v. Plain Dealer Publ’g

Co.,

486 U.S. 750 (1988) ....................................................... 18

Denver Area Educ. Telecomms.

Consortium, Inc. v. FCC,

518 U.S. 727 (1996) ............................... 19, 20, 26, 32, 33

Edenfield v. Fane,

507 U.S. 761 (1993) ....................................................... 45

FCC v. League of Women Voters of Cal.,

468 U.S. 364 (1984) ....................................................... 32

FCC v. Midwest Video Corp.,

440 U.S. 689 (1979) ....................................................... 31

FEC v. Cruz,

596 U.S. 289 (2022) ...................................................... 49

vii

Grosjean v. Am. Press Co.,

297 U.S. 233 (1936) ....................................................... 38

Herbert v. Lando,

441 U.S. 153 (1979) ................................................. 17, 50

Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Boston,

515 U.S. 557 (1995)

........... 1, 5, 13, 15, 19-21, 23, 25, 28-29, 31, 36, 43-45, 48

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

v. Lee,

505 U.S. 672 (1992) ....................................................... 33

Janus v. AFSCME,

138 S. Ct. 2448 (2018) ................................................... 20

Lovell v. City of Griffin,

303 U.S. 444 (1938) ....................................................... 30

Manhattan Cmty. Access Corp. v. Halleck,

139 S. Ct. 1921 (2019) ..............1, 2, 13, 20, 21, 22, 27, 33

Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n,

138 S. Ct. 1719 (2018) ................................................... 21

McCullen v. Coakley,

573 U.S. 464 (2014) ....................................................... 41

Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241 (1974)

................... 1, 13, 15, 19, 20, 25, 28, 31, 33, 41, 42, 44, 47

viii

Milavetz, Gallop & Milavetz, P.A. v.

United States,

559 U.S. 229 (2010) ....................................................... 47

Minneapolis Star & Tribune Co. v. Minn.

Comm’r of Revenue,

460 U.S. 575 (1983) ........................................... 38, 39, 40

Nat’l Inst. of Family Life Advocs. v.

Becerra,

138 S. Ct. 2361 (2018) ........................... 36, 38, 44, 47, 52

NetChoice, LLC v. Paxton,

142 S. Ct. 1715 (2022) ................................................... 12

Pac. Gas & Elec. Co. v. Pub. Util. Comm’n

of Cal.,

475 U.S. 1 (1986) ........ 1, 13, 19, 25, 28, 29, 32, 33, 36, 44

Packingham v. North Carolina,

582 U.S. 98 (2017) ......................................................... 41

PruneYard Shopping Center v. Robins,

447 U.S. 74 (1980) ......................................................... 29

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ....................................................... 40

In re R.M.J.,

455 U.S. 191 (1982) ....................................................... 48

Red Lion Broad. Co. v. FCC,

395 U.S. 367 (1969) ....................................................... 42

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ....................................................... 36

Reno v. ACLU,

521 U.S. 844 (1997) ..................... 4, 13, 18, 28, 30, 42, 44

Riley v. Nat’l Fed. of the Blind of N.

Carolina, Inc.,

487 U.S. 781 (1988) ........................................... 28, 36, 46

Rumsfeld v. Forum for Academic &

Institutional Rights, Inc.,

547 U.S. 47 (2006) ................................................... 29, 30

Rutan v. Republican Party of Ill.,

497 U.S. 62 (1990) ......................................................... 46

Smith v. California,

361 U.S. 147 (1959) ....................................................... 20

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ..................................... 18, 40, 41, 47

Stratton Oakmont, Inc. v. Prodigy Servs.

Co.,

1995 WL 323710

(N.Y. Sup. Ct. May 24, 1995) ....................................... 34

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

512 U.S. 622 (1994) .... 5, 13, 15, 18, 20, 38-40, 42, 43, 45

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

520 U.S. 180 (1997) ....................................................... 42

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) ......................................................... 4

U.S. Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) .......................... 14, 22, 31

United States v. Playboy Ent. Grp., Inc.,

529 U.S. 803 (2000) ................................................. 41, 46

United States v. United Foods, Inc.,

533 U.S. 405 (2001) ....................................................... 47

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................................................. 19, 53

Wooley v. Maynard,

430 U.S. 705 (1977) ................................................. 19, 29

Zauderer v. Office of Disciplinary Counsel

of Supreme Court of Ohio,

471 U.S. 626 (1985) ..............12, 16, 17, 46, 47, 48, 49, 52

Statutes

28 U.S.C. § 1254 .................................................................... 3

47 U.S.C. § 223 .................................................................... 32

47 U.S.C. § 230 .................................................. 14, 26, 32, 33

Tex. Bus. & Com. Code § 17.46 ......................................... 49

Tex. Bus. & Com. Code § 120.001 ............................. 8, 9, 37

Tex. Bus. & Com. Code § 120.002 ....................................... 8

Tex. Bus. & Com. Code § 120.051 ............................... 11, 51

Tex. Bus. & Com. Code § 120.052 ..................................... 11

Tex. Bus. & Com. Code § 120.053 .............................. 10, 51

Tex. Bus. & Com. Code § 120.101 ................................. 9, 10

Tex. Bus. & Com. Code § 120.102 ........................... 9, 10, 50

Tex. Bus. & Com. Code § 120.103 ..................... 9, 10, 50, 51

Tex. Bus. & Com. Code § 120.104 ..................... 9, 10, 50, 51

Tex. Bus. & Com. Code § 120.151 ..................................... 11

Tex. Civ. Prac. & Rem. Code § 143A.001 ................. 8, 9, 36

Tex. Civ. Prac. & Rem. Code § 143A.002 ....................... 8, 9

Tex. Civ. Prac. & Rem. Code § 143A.006 ................. 8, 9, 37

Tex. Civ. Prac. & Rem. Code § 143A.007 ................... 11, 12

Tex. Civ. Prac. & Rem. Code § 143A.008 ......................... 11

Other Authorities

Appellant’s Br., NetChoice, LLC v.

Paxton, No. 21-51178, 2022 WL

717286, (5th Cir. Mar. 2, 2022) ................................... 45

Appellees’ Br., NetChoice, LLC v. Paxton,

No. 21-51178, 2022 WL 1046833 (5th

Cir. Apr. 1, 2022) .......................................................... 35

Benjamin Franklin, Autobiography of

Benjamin Franklin (1901 ed.) ................................... 22

Frank Luther Mott, American Journalism

- A History 1690-1960 (3d ed. 1962) ...................... 2, 22

James Madison, The Report of 1800 (Jan.

7, 1800) ........................................................................... 24

xii

Plfs.’ Mot. for Prelim. Inj., ECF 12,

NetChoice, LLC v. Paxton,

No. 1:21-cv-00840 (W.D. Tex. Oct. 1,

2021) ............................................................................... 35

Report of the Minority on the Virginia

Resolutions (Jan. 22, 1799) .......................................... 23

States’ Letter to Vanessa Countryman,

Secretary, SEC (Aug. 16, 2022),

https://perma.cc/D5VT-8B4E ..................................... 50

Thomas Cooley, A Treatise on

Constitutional Limitations Which Rests

Upon the Legislative Power of the

States of the American Union (1871) ......................... 24

William Livingston, On the Use, Abuse,

and Liberty of the Press, with a Little

Salutary Advice, New Eng. Mag.

Knowledge & Pleasure (Aug. 1, 1758)........................ 23

INTRODUCTION

Texas House Bill 20 (“HB20”) is an extraordinary assertion of governmental power over expression that violates the First Amendment in multiple ways. HB20 singles out some of the Internet’s most popular websites, including Facebook, Instagram, Pinterest, TikTok, Vimeo,

X (formerly known as Twitter), and YouTube.

Pet. App. 154a.1 It forces those websites—but not comparable Internet websites with different perceived viewpoints—to disseminate third-party speech against their

will and provide individualized explanations for billions of

editorial decisions. Legislators and the Texas Governor

were not shy about the motivation for this law: to promote

“conservative” speech and combat perceived “Silicon Valley censorship.” J. A. 21a, 25a.

HB20 is a flagrant violation of the First Amendment.

This Court has repeatedly rejected governmental efforts

to compel private parties to disseminate speech, in cases

involving everything from parade organizers to newspapers to bookstores to cable-television operators to government-franchised monopolies to websites and more. 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);

Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475

U.S. 1, 11 (1986) (“PG&E”) (plurality op.);2 Miami Herald

This brief will refer to HB20-regulated entities, which include social

media services, websites, online applications, and other digital services, as “websites.”

All citations to PG&E are to the plurality opinion. See Hurley, 515

U.S. at 573, 575-76, 580 (treating PG&E’s plurality opinion as its holding).

(1)

Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974). And

rightly so, as there is no American tradition of forcing private parties to disseminate viewpoints against their will.

Benjamin Franklin “did not have to operate his newspaper as ‘a stagecoach, with seats for everyone.’” Halleck,

139 S. Ct. at 1931 (quoting Frank Luther Mott, American

Journalism - A History 1690-1960, at 55 (3d ed. 1962)). The

same is true of a website that displays speech on the Internet.

The Fifth Circuit majority reached the opposite conclusion by trying to characterize a website’s decision not

to disseminate expressive “content” as “censorship.” But

only the government, with its coercive power, can engage

in “censorship.” When private parties refuse to publish

speech, they are engaged in protected First Amendment

activity, as numerous cases of this Court hold. The notion

that the government may compel private speech in the

name of quelling “censorship” turns the First Amendment on its head.

Yet that is precisely what HB20 seeks to do. Its prohibition on making editorial choices based on “viewpoint”

would require covered websites to display tens of millions

of posts per year containing myriad messages with which

they may disagree, from antisemitic speech to terrorist

propaganda. Pet. App. 173a. Viewers and advertisers will

inevitably attribute this objectionable content to the websites. In fact, many have already waged several boycotts

resulting in millions of dollars in lost revenue based on

websites’ perceived failures to address objectionable content. Pet. App. 184a; J. A. 97a-100a, 103a, 208a, 212a.

Worse still, HB20 would force websites to provide individualized explanations each time they refuse to disseminate

speech—actions that covered websites take literally billions of times each year.

The First Amendment tolerates none of this. Accordingly, this Court should reverse the Fifth Circuit’s judgment.

OPINIONS BELOW

The Fifth Circuit’s opinion (Pet. App. 1a-142a) is reported at 49 F.4th 439. The district court’s opinion

(Pet. App. 143a-85a) is reported at 573 F. Supp. 3d 1092.

JURISDICTION

The Fifth Circuit entered its judgment on September

16, 2022. Petitioners timely petitioned for certiorari on

December 15, 2022. The Court has jurisdiction under 28

U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment is reproduced at

Pet. App. 186a. HB20 is reproduced at Pet. App. 187a206a.

STATEMENT

A. Factual background

Petitioners NetChoice and CCIA are two leading Internet trade associations whose members operate a variety of popular websites on which users can share and interact with content, including Google (YouTube’s owner),

Meta (Facebook and Instagram’s owner), Pinterest, TikTok, and X. Pet. App. 154a.3 These websites “publish,”

Reno v. ACLU, 521 U.S. 844, 853 (1997), and “disseminate,” 303 Creative LLC v. Elenis, 600 U.S. 570, 594

(2023), speech by making text, audio, graphics, and video

available to their users.

Petitioners’ members edit and organize customized

compilations (“feeds”) of content that typically include a

combination of their own speech, user-submitted speech,

and advertisements. E.g., J. A. 100a, 139a, 289a. Covered

websites “organize and present” speech, in part, with

“‘recommendation’ algorithms that automatically match

advertisements and content with each user.” Twitter, Inc.

v. Taamneh, 598 U.S. 471, 480 (2023). Website operators

design these algorithms to implement editorial policies

likewise crafted by humans. Pet. App. 164a; J. A. 113a,

118a-21a. Every user’s feed is an “original, customized

creation,” “tailored” “for each” user and intended to “communicate ideas.” 303 Creative, 600 U.S. at 582, 587, 594

(internal quotation marks omitted); J. A. 139a (“unique to

each user”). That expression is “displayed on” proprietary

Respondent engaged in nearly a month of discovery during the preliminary-injunction proceedings below, including depositions and

document production from Petitioners’ seven declarants, plus two

sets of interrogatories. J. A. 164a-65a.

“graphic and website design” alongside “the name of the

company,” such that “[v]iewers will know” the website is

responsible for the expression on it. 303 Creative, 600 U.S.

at 579, 582.

A website’s organization of content conveys “ideas”

about what it considers relevant or interesting to individual viewers, “deserving of expression, consideration, and

adherence,” Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 641 (1994), or “worthy of presentation and quite possibly of support as well,” Hurley, 515 U.S. at 575. Thus,

every piece of expression in a feed “affects the message

conveyed by” the website. Id. at 572.

NetChoice and CCIA members do not disseminate or

present all user-created expression equally. Everything

viewers see is arranged according to websites’ editorial

policies, which reflect the community each website seeks

to foster and each website’s value judgments about what

expression is worthy of presentation. J. A. 77a-78a, 109a110a. Some websites have cultivated communities around

specific topics, like Pinterest’s emphasis on recipes, design, fashion, and inspiration. J. A. 77a. Others, like

YouTube, “foster[] self-expression on an array of topics

as diverse as [their] user base[s].” J. A. 108a. And every

covered website prohibits speech it considers dangerous,

such as speech praising terrorism or inciting violence.

J. A. 405a-479a.

Covered websites use a variety of means to enforce

their policies and curate the expression they display.

J. A. 66a-78a. Users must agree to terms of service, which

uniformly make clear some content is off-limits and require compliance with the website’s editorial policies.

J. A. 84a-85a, 112a, 140a. All expression on the websites is

subject to review for such compliance. J. A. 84a-85a, 112a13a.

These websites must exercise editorial discretion to

prioritize some speech by selecting the order in which material is displayed to viewers. J. A.77a-79a, 100a. Whether

in search results, comments, or in feeds, websites necessarily must choose what gets displayed first. J. A.78a.

Websites also recommend content to users—even if just

chronologically. J. A. 113a-15a. Some websites allow viewers to help determine the content they see, allowing

viewer preferences to inform how they display expression

in customized ways. J. A. 143a, 349a-50a. Finally, websites

also provide context about content, offering warnings and

other information they consider useful or appropriate.

E.g., J. A. 76a.

Stripping away this editorial oversight would fundamentally change the character of these websites. They

would be overrun with objectionable expression that

would drive away users and advertisers—and contradict

the websites’ own principles. The scale of objectionable

content is vast: In a six-month period in 2018, “Facebook,

Google, and Twitter took action on over 5 billion accounts

or user 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;

J. A. 102a. And “in a three-month period in 2021, YouTube

removed 1.16 billion comments.” Pet. App. 173a;

J. A. 133a.

Undisputed evidence shows that both viewers and advertisers have boycotted websites for perceived failures

to remove offensive expression. Pet . App. 184a; J. A. 79a,

87a-88a, 97a-100a, 103a. YouTube in 2017 “lost millions of

dollars in advertising revenue after” advertisers “took

down their ads after seeing them distributed next to videos containing extremist content and hate speech.”

J. A. 103a. Meta in 2020 “saw a nearly identical response”

generated by advertiser concerns about “hate speech and

misinformation.” Id. These websites devote tens of millions of dollars annually to refining their editorial policies

and enforcement mechanisms to keep objectionable content off their sites. E.g., J. A. 241a.

B. Texas House Bill 20

HB20 seeks to upend the way certain State-disfavored

websites disseminate speech, imposing the State’s views

and editorial directives on private entities. In Texas’s

view, certain websites do not do enough to promote “conservative” speech. Texas therefore decided to compel

them to do more. As the Governor proclaimed in his official signing statement (and elsewhere): “It is now law that

conservative viewpoints in Texas cannot be banned on social media.” J. A. 25a; see J. A. 22a-23a. Key legislators

echoed that sentiment. Pet. App. 144a-45a, 165a-66a, 182a;

J. A. 22a-23a.

1. Regulated “social media platforms”

HB20’s definition of “social media platforms” is a content- and speaker-based provision targeting only a handful of websites for onerous regulation.

HB20 regulates “social media platforms,” defined as

any “website or application” (1) “that is open to the public”; (2) “allows a user to create an account”; and (3) “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).

But HB20 applies only to “platforms” with “more than

50 million active users in the United States in a calendar

month.” Tex. Bus. & Com. Code § 120.002(b). This arbitrary threshold excludes websites with a different perceived ideological perspective like “Parler and Gab.”

Pet. App. 175a (cleaned up). Today, newer websites like

Truth Social would also be excluded for the same reason.

HB20 also excludes certain websites “that consist[] primarily of news, sports, entertainment, or other information or content that is not user generated.” Tex. Bus.

& Com. Code § 120.001(1)(C)(i).

2. HB20 Section

restrictions

7’s

content-moderation

This lawsuit challenges two sections of HB20. HB20

Section 7 compels covered websites to disseminate speech

by prohibiting them from making editorial choices based

on the “viewpoint” of the expression or user. Tex. Civ.

Prac. & Rem. Code §§ 143A.001(1), 143A.002(a).

Section 7 bans covered websites from “censor[ing] 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.” Id. § 143A.002.4 Because this

This prohibition does not apply if the website “is specifically authorized to censor by federal law.” Tex. Civ. Prac. & Rem. Code

§ 143A.006(a)(1). Respondent has never asserted that websites’ current policies would satisfy that exception.

provision applies to both submitting and “receiv[ing]” expression, HB20 regulates websites’ editorial choices

worldwide. Id. § 143A.002(a).

The statute defines “censor” to include editorial actions that websites make countless times a day—including

decisions about what advertisements to run and how. Specifically, websites cannot “block, ban, remove, deplatform,

demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”

Id. § 143A.001(1).

Section 7 contains additional content-based exceptions

for expression that (1) “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”; or (2) “directly incites criminal activity or consists of specific

threats of violence targeted against a person or group because of” a limited subset of protected characteristics.

Id. §143A.006(a)(2)-(3).

HB20 also requires websites to do business in Texas,

as it makes it unlawful to “deny equal access or visibility

to” expression “based on . . . a user’s geographic location

in this state.” Id. §§ 143A.001(1), 143A.002.

3. HB20 Section 2’s individualized-explanation

requirements

HB20 Section 2 compels covered websites to create individualized explanations for billions of their editorial decisions.

a. Section 2 requires onerous notice, complaint, and

appeals processes for users to challenge each of the millions of times websites refuse to disseminate speech. Tex.

Bus. & Com. Code §§ 120.101-120.104.

Notices. When websites remove content for any reason, Section 2 compels them to “notify the user who provided the content of the removal and explain the reason

the content was removed.” Id. § 120.103(a)(1).

Complaints. Users also must be able to “submit” and

“track” complaints about “a decision made by the social

media platform to remove content posted by the user” or

“illegal content or activity” that is not removed.

Id. § 120.101. For complaints about the latter, websites

must respond “within 48 hours of receiving the notice.”

Id. § 120.102.

Appeals. Websites must “allow the user to appeal the

decision to remove . . . content.” Id. §§ 120.103(a)(2),

120.104. Websites must “review” such complaints, “determine” their validity, and respond to them within 14 business days. Id. § 120.104. A website’s response must explain (1) “the determination” of “whether the content adheres to the” website’s “acceptable use policy”; and (2) if

the website reverses its decision, “the reason for the reversal.” Id. §§ 120.103(a)(3), 120.104.

b. HB20 Section 2 separately compels websites to provide broad disclosures and individualized explanations of

content-moderation decisions in two sets of public reporting.

As part of Section 2’s “biannual transparency report,”

websites must disclose “a description of each tool, practice, action, or technique used in enforcing the acceptable

use policy.” Id. § 120.053(a)(7) (emphases added). Respondent has not disputed that this would require websites to describe every single editorial action they take

during the reporting period. As the record reflects, websites take “action” “per individual per piece of content.”

J. A. 291a. Thus, this provision would require websites to

track and describe billions of actions each year.

Similarly, Section 2 requires broad disclosures about

websites’ “content management, data management, and

business practices”—which covers virtually everything

they do. Tex. Bus. & Com. Code § 120.051(a). These disclosures mandate “specific information regarding the

manner in which the social media platform: (1) curates

and targets content to users; (2) places and promotes content, services, and products, including its own content,

services, and products; (3) moderates content; [and]

(4) uses search, ranking, or other algorithms or procedures that determine results on the platform.” Id. As with

the disclosure of each “action,” each of these decisions are

determined by countless dynamic variables. E.g.,

J. A. 291a.

The record reflects that all these disclosures risk

providing malicious actors with information helping them

evade moderation. E.g., J. A. 134a. That is why websites’

content-moderation algorithms are proprietary and

closely held. Pet. App. 173a; J. A. 134a, 147a.5

4. HB20 enforcement

All provisions of HB20 Sections 2 and 7 are enforceable by the Texas Attorney General, who can recover attorney’s fees and investigative costs. Tex. Bus. & Com.

Code § 120.151; Tex. Civ. Prac. & Rem. Code § 143A.008.

Section 7 is also enforceable via private right of action.

Tex. Civ. Prac. & Rem. Code § 143A.007. HB20 permits

Section 2 also requires covered websites to publish an “acceptable

use policy.” Tex. Bus. & Com. Code. § 120.052.

courts to impose “daily penalties sufficient to secure immediate compliance” with Section 7. Id. § 143A.007(c).

C. Procedural history

Soon after Texas passed HB20, NetChoice and CCIA

challenged the law in federal court. After nearly a month

of discovery, the district court enjoined Respondent from

enforcing HB20 Sections 2 and 7, concluding they violate

the First Amendment. Pet. App. 185a. Respondent asked

the Fifth Circuit to stay the injunction, and, two days after

oral argument on the merits, a divided panel granted the

motion. NetChoice and CCIA promptly sought relief from

this Court, which vacated the Fifth Circuit’s stay order.

NetChoice, LLC v. Paxton, 142 S. Ct. 1715 (2022).

Months later, the Fifth Circuit released its opinion.

Pet. App. 1a-142a. Over Judge Southwick’s dissent, the

majority concluded that HB20 Section 7 does not violate

the First Amendment. Pet. App. 20a-55a, 80a-91a. Notwithstanding that covered websites are private entities,

the majority repeatedly characterized websites’ decisions

not to disseminate speech as “censorship.” Pet. App. 3a,

7a-9a, 15a-20a, 23a-25a, 38a-40a, 42a-48a, 53a-55a, 80a83a, 85-86a, 90a-91a, 99a-100a, 108a-110a, 113a. And the

majority denied that the First Amendment protects websites’ rights to choose what speech to disseminate.

Pet. App. 43a. The panel unanimously concluded that

HB20 Section 2 does not violate the First Amendment

based on an expansive understanding of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio,

471 U.S. 626 (1985). Pet. App. 91a- 99a.

SUMMARY OF ARGUMENT

I. The First Amendment protects the right of private

parties to choose whether and how to disseminate speech.

A. As this Court has recognized time and again, the

First Amendment protects private parties’ editorial

rights to choose whether and how to disseminate speech—

including speech generated by others. E.g., Halleck, 139

S. Ct. at 1930; Ark. Educ. Television Comm’n v. Forbes,

523 U.S. 666, 674 (1998); Hurley, 515 U.S. at 570; Turner,

512 U.S. at 661; PG&E, 475 U.S. at 11; Tornillo, 418 U.S.

at 258. Our constitutional tradition has long protected private entities’ rights to decide what speech they find worth

presenting, what speech is not, and how best to use the

latest technology to promote speech.

The Fifth Circuit majority’s contrary analysis suffered from multiple flaws. Primarily, it erroneously

treated the constitutionally protected decisions of private

actors not to disseminate speech as the “conduct” of “censorship.” Pet. App. 9a (emphases omitted). That central

error led the majority to ignore the First Amendment’s

well-established protections for editorial discretion, impose unwarranted limitations on the right to exercise it,

artificially limit this Court’s precedent rejecting compelled speech, and give undue weight to inapposite precedent that does not involve parties making editorial choices

about whether and how to disseminate speech.

B. These First Amendment protections apply fully to

speech on the Internet. Decades ago, Reno v. ACLU held

that there is “no basis for qualifying the level of First

Amendment scrutiny that should be applied” to speech on

the “Internet.” 521 U.S. at 870. This Court reaffirmed that

principle just last Term. 303 Creative, 600 U.S. at 587.

Governments therefore “may not . . . tell Twitter or

YouTube what videos to post; or tell Facebook or Google

what content to favor.” U.S. Telecom Ass’n v. FCC, 855

F.3d 381, 435 (D.C. Cir. 2017) (“USTA”) (Kavanaugh, J.,

dissenting from denial of reh’g en banc); accord id. at 392

(Srinivasan, J., concurring in denial of reh’g en banc) (similar).

The Fifth Circuit majority’s justifications for limiting

websites’ First Amendment rights are unpersuasive.

Websites like Facebook and YouTube are not common

carriers, and governments cannot compel private parties

that have exercised editorial discretion in ways the government disfavors to become common carriers of thirdparty speech. Nor are Petitioners’ members “public forums”—a concept limited to government property. And

Congress’s protections for Internet websites in 47 U.S.C.

§ 230 have no bearing on the First Amendment questions

presented, beyond underscoring that Congress affirmatively protected websites’ editorial discretion.

II. A. HB20 Section 7’s prohibition on editorial choices

based on “viewpoint” triggers strict scrutiny in multiple

ways.

First, Section 7 would compel covered websites to disseminate speech and infringe their editorial discretion.

Tornillo and its progeny make crystal clear that refusing

to carry third-party speech because of its viewpoint is a

core First Amendment right. Nonetheless, under HB20,

covered websites would have to abandon many aspects of

their editorial policies, including their prohibitions on proterrorist speech. Unrebutted evidence confirms that governmental interference with editorial discretion is costly

as well as unconstitutional, as users and advertisers will

leave the websites if they are required to display objectionable speech, costing websites millions of dollars. E.g.,

J. A. 97a-100a.

Second, HB20’s “social media platforms” definition is

both content- and speaker-based. It excludes websites

that (1) have fewer than 50 million monthly U.S. users, or

(2) consist primarily of news, sports, or entertainment.

Third, Section 7’s prohibition on “viewpoint”-based

editorial discretion is unavoidably a viewpoint-based infringement of First Amendment rights. Worse yet, Section 7 contains additional content-based exceptions. And

Texas officials candidly acknowledged HB20 was designed to promote “conservative” viewpoints.

B. HB20 Section 7 fails strict scrutiny. This Court has

repeatedly held that governments cannot compel private

actors to disseminate speech in hopes of achieving balance

in—or maximizing—speech. E.g., Ariz. Free Enter. Club

v. Bennett, 564 U.S. 721, 749-50 (2011); Buckley v. Valeo,

424 U.S. 1, 48-49 (1976) (per curiam); Tornillo, 418 U.S. at

258.

The Fifth Circuit majority invoked Turner to claim a

governmental interest “in protecting the widespread dissemination of information.” Pet. App. 91a. But Turner involved very different circumstances: a content-neutral

law regulating government-franchised cable-television

operators, which had a “physical connection” providing a

“bottleneck” that could be used to “obstruct readers’ access to other competing publications.” 512 U.S. at 646,

656. No covered website controls the content available on

the Internet or can impede access to competing websites,

and this Court has never extended Turner beyond its

unique facts. Hurley, 515 U.S. at 577 (discussing Turner).

HB20 Section 7 would not be properly tailored even if

its true goal were maximizing speech. It covers only a few

State-disfavored websites. Furthermore, websites purportedly may refuse to display large categories of speech

to avoid the obligation to disseminate objectionable viewpoints—which would reduce the speech they display.

III. A. HB20 Section 2’s onerous individualized-explanation requirements and broad disclosures of individual

editorial actions likewise trigger strict scrutiny in multiple ways. Section 2 relies on the same flawed content- and

speaker-based coverage definition of “social media platforms,” which applies to a limited number of websites and

excludes news, sports, and entertainment websites.

Further, Section 2 compels covered websites to create

speech in their own name and imposes onerous requirements whenever they exercise editorial control over their

websites. Specifically, websites must provide notice, complaint, and appeals procedures for users to challenge each

of the millions of times covered websites refuse to disseminate user-created expression. These procedures require

websites to respond quickly and create explanations for

granular editorial decisions. Websites must also publicly

report an even broader range of editorial decisions.

Among the ways to alleviate the massive burdens this entails would be to engage in less editorial discretion.

The Fifth Circuit erred by evaluating Section 2’s requirements under the test for compelling certain commercial disclosures in Zauderer. This Court has never applied

Zauderer outside the context of correcting misleading advertising. Individualized explanations for a publication’s

editorial choices have nothing to do with advertising, let

alone misleading advertising. They are instead akin to

requiring a newspaper to explain every decision not to

publish any one of a million letters to the editor.

B. Section 2’s individualized-explanation requirements fail any First Amendment scrutiny.

These provisions do not serve any purported interest

in “preventing deception of consumers.” Pet. App. 92a.

That interest is nowhere to be found in HB20 itself or legislators’ public statements. The decision below did not explain what “deception” these provisions might address.

Nor could it have when websites already state publicly

that they moderate content and make their editorial policies publicly available. Besides, Texas has a separate deceptive trade practices law. The State lacks a sufficient

governmental interest to “subject[] the editorial process

to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest.” Herbert v. Lando, 441 U.S. 153, 174 (1979).

In all events, Section 2 cannot pass even Zauderer’s

“unduly burdensome” test, let alone satisfy strict scrutiny. HB20 imposes enormously burdensome requirements designed to prevent websites from moderating content. The record demonstrates covered websites would

need to radically expand their notice-and-appeals processes, divert editorial resources, and disclose countless

editorial decisions to comply. For example, YouTube

would need to “expand” its current appeal “systems’ capacity by over 100X—from a volume handling millions of

removals to that of over a billion removals.” J. A. 133a.

That is the very definition of an undue burden on disseminating speech.

ARGUMENT

I. The First Amendment protects the right of private

parties to make editorial choices in the selection

and presentation of speech.

A. This Court’s First Amendment precedent and

the Nation’s history and tradition protect

private parties’ editorial discretion.

1. The First Amendment protects the right of private

parties both to decide what messages to disseminate and

to choose whether and how to disseminate others’ speech.

Each of those protections is critical to expression in a free

society.

This Court has faithfully applied those principles to all

kinds of speakers throughout the Nation’s history. From

the Founding onward, one basic rule has persisted: The

First Amendment prevents governmental efforts to compel people to disseminate others’ speech. And when private parties decline to do so, they are exercising their constitutional right to editorial discretion, not engaging in

“censorship.” Indeed, “censorship” is the exclusive province of the government. The notion that the government

may compel private speech in the name of quelling “censorship” turns the First Amendment on its head.

a. The First Amendment has steadfastly protected the

publication and dissemination of speech. It protects more

than simply creating speech. It protects “publish[ing],”

Reno, 521 U.S. at 853; “dissemin[ating],” Sorrell v. IMS

Health Inc., 564 U.S. 552, 570 (2011); “circulating,” City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 768

(1988) (citation omitted); “transmit[ting],” Turner, 512

U.S. at 636; “distributing,” Brown v. Ent. Merchs. Ass’n,

564 U.S. 786, 792 n.1 (2011); and “disclosing” speech, Bartnicki v. Vopper, 532 U.S. 514, 527 (2001). And these protections are “enjoyed by” all private actors, Hurley, 515

U.S. at 574, including those who “employ[] the corporate

form to disseminate their speech,” 303 Creative, 600 U.S.

at 594.

b. The freedom to disseminate speech necessarily includes the right to choose whether and how to do so. Any

governmental “compulsion to publish that which ‘reason

tells them should not be published’ is unconstitutional.”

Tornillo, 418 U.S. at 256.

Editorial discretion is itself protected by the First

Amendment. When a private entity “exercises editorial

discretion in the selection and presentation of its programming, it engages in speech activity.” Forbes, 523 U.S.

at 674. Put another way, “the editorial function itself is an

aspect of ‘speech.’” Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 737 (1996) (plurality

op.) (citation omitted). “[E]ditorial control” includes the

“choice of material,” “decisions made as to limitations on

the size and content,” and “treatment of public issues and

public officials.” Tornillo, 418 U.S. at 258. This “right to

tailor” speech applies “equally” to “expressions of value,

opinion, or endorsement” as to “statements of fact.” Hurley, 515 U.S. at 573 (citation omitted).

The right of editorial discretion necessarily includes

the right not to disseminate speech. Presenting speech

“inherently involves choices of what to say and what to

leave unsaid.” Id. at 573 (quoting PG&E, 475 U.S. at 11);

see 303 Creative, 600 U.S. at 585-86; Wooley v. Maynard,

430 U.S. 705, 714 (1977); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Relatedly, private actors

may “eschew association for expressive purposes.” Janus

v. AFSCME, 138 S. Ct. 2448, 2463 (2018); see 303 Creative,

600 U.S. at 586.

c. First Amendment protections for editorial discretion apply fully when private entities disseminate speech

created by others. Private actors do not “‘forfeit constitutional protection simply by combining multifarious voices’

in a single communication.” 303 Creative, 600 U.S. at 588

(quoting Hurley, 515 U.S. at 569). Indeed, “the presentation of an edited compilation of speech generated by other

persons is a staple” of our Nation’s history. Hurley, 515

U.S. at 570. This includes many compilations and compilers protected by this Court’s decisions: parade organizers, id.; newspapers’ op-ed pages, Tornillo, 418 U.S. at

258; bookstores, Smith v. California, 361 U.S. 147, 150

(1959); “book publishers,” 303 Creative, 600 U.S. at 594;

“community bulletin boards,” Halleck, 139 S. Ct. at 1930;

“[c]omedy clubs” hosting “open mic nights,” id.; cable operators, Denver, 518 U.S. at 737-38 (plurality op.); “editor[s] of a collection of essays,” id. at 816 (Thomas, J., concurring in part and dissenting in part); “newsstands,”

Turner, 512 U.S. at 681 (O’Connor, J., concurring in part

and dissenting in part); “movie theaters,” id.; and more.

Time after time, this Court has held that editorial decisions underlying the “compilation of the speech of third

parties” are themselves “communicative acts.” Forbes,

523 U.S. at 674. It does not matter if private entities “fail

to edit . . . themes to isolate an exact message.” Hurley,

515 U.S. at 569. Whenever laws “requir[e]” private entities “to include voices they wished to exclude,” governments “impermissibly require them to ‘alter the expressive content of their’” compilations. 303 Creative, 600 U.S.

at 585 (quoting Hurley, 515 U.S. at 572-73). That is so

even if the government allows private entities to “expressly disavow [or] distance themselves from” the compelled speech by “add[ing] addenda or disclaimers.”

Pet. App. 41a. Otherwise, the ability to disclaim 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).

In short, private entities that “provide[] a forum for

[third-party] speech” are entitled to “exercise editorial

discretion over the speech and speakers.” Halleck, 139

S. Ct. at 1930. That is why governments cannot

“declar[e] . . . speech itself to be [a] public accommodation.” Hurley, 515 U.S. at 573; see 303 Creative, 600 U.S.

at 592. Otherwise, private entities that “open their property for speech . . . would lose the ability to exercise what

they deem to be appropriate editorial discretion.” Halleck, 139 S. Ct. at 1930-31. The First Amendment precludes putting private entities to the unconstitutional

“choice of allowing all comers or closing . . . altogether.”

Id. at 1931.

2. Rather than focus on this Court’s precedent and the

clear rule it compels, the Fifth Circuit majority spent

much of its opinion engaging in its own examination of

what it deemed to be “the original public meaning of the

First Amendment.” Pet. App. 24a. The majority even

went so far as to chide Petitioners for “focus[ing] their attention on Supreme Court doctrine” rather than

“mount[ing] any challenge under the original public

meaning of the First Amendment.” Id. But Respondent

never argued below that the First Amendment’s original

meaning diverges from “Supreme Court doctrine.” Id.

Regardless, lower courts cannot use originalism as an excuse to ignore this Court’s binding precedent.

The majority posited a false dichotomy at any rate. Petitioners have consistently focused on this Court’s precedent because this Court has already determined the First

Amendment’s original meaning when it comes to private

parties’ editorial discretion. The principle that editorial

discretion is itself protected speech, not prohibited “censorship,” has been well understood since the time of Benjamin Franklin. There simply is no American tradition of

governments compelling speech by directing the editorial

choices of private parties—which is precisely why this

Court has repeatedly rejected such efforts as prohibited

by the First Amendment.

a. As far back as our Nation’s Founding, “the Federal

Government could not compel book publishers to accept

and promote all books on equal terms or to publish books

from authors with different perspectives.” USTA, 855

F.3d at 427 (Kavanaugh, J., dissenting from denial of

reh’g en banc). So Benjamin Franklin’s newspaper was

not “‘a stagecoach, with seats for everyone,’” Halleck, 139

S. Ct. at 1931 (quoting Mott at 55), “in which anyone who

would pay had a right to a place,” Benjamin Franklin, Autobiography of Benjamin Franklin 94 (1901 ed.). He explained why he exercised editorial discretion to omit

things like “personal abuse”: “having contracted with [his]

subscribers to furnish them with what might be either

useful or entertaining, [he] could not fill their papers with

private altercation . . . without doing them manifest injustice.” Id.

As other Founding-era materials confirm, printers

were widely understood to have the right to exercise

editorial discretion. “A Printer ought not to publish every

Thing that is offered to him, but what is conducive of general Utility,” stated future Constitutional Convention delegate William Livingston. On the Use, Abuse, and Liberty

of the Press, with a Little Salutary Advice 37, New Eng.

Mag. Knowledge & Pleasure (Aug. 1, 1758). Even those

who took the narrowest view of First Amendment freedoms recognized that printers should not be compelled to

publish others’ speech. In defending the Alien and Sedition Acts, the Report of the Minority on the Virginia Resolutions (often attributed to John Marshall) explained

that the press has “liberty to publish . . . any thing and

every thing at the discretion of the printer only.” Report

of the Minority on the Virginia Resolutions (Jan. 22, 1799)

(emphasis added).

Nor is there support for the Fifth Circuit majority’s

implicit conclusion that the right to “express[] . . . goodfaith opinions on matters of public concern” does not include the right to editorial discretion. Pet. App. 24a. As explained above (at pp.5, 19-20), private parties’ decisions

about what speech to disseminate are themselves a form

of expression, as they reflect private parties’ views about

what speech they believe is “worthy of presentation.”

Hurley, 515 U.S. at 575. The majority’s contrary view

would permit governments to tell “all manner of artists,

speechwriters, and others whose services involve speech”

what speech they must disseminate. 303 Creative, 600

U.S. at 589-90.

Finally, to the extent the majority suggested that the

First Amendment protects against only “prior restraints,” Pet. App. 23a, that is both irrelevant and egregiously wrong in light of this Court’s precedent

invalidating other abridgments of speech. HB20 is a prior

restraint: Laws that “forbid speech activities” when “issued in advance of the time that such communications are

to occur” are “classic examples of prior restraints.” Alexander v. United States, 509 U.S. 544, 550 (1993). That is

precisely what HB20 does. The majority posited otherwise only because it refused to accept that editorial discretion is a protected form of expression.

In any case, this Court has held time and again that

“[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); e.g., James Madison, The Report of 1800 (Jan. 7,

1800) (“the freedom of the press” ensures “an exemption . . . from the subsequent penalty of laws”); Thomas

Cooley, A Treatise on Constitutional Limitations Which

Rests Upon the Legislative Power of the States of the

American Union 421 (1871) (“the mere exemption from

previous restraints cannot be all that is secured by the

constitutional provisions”). The majority made no effort

to justify its seeming desire to upend more than a century

of this Court’s precedent.

b. When the Fifth Circuit majority addressed this

Court’s precedent, its analysis was equally flawed. The

majority posited that this Court has not recognized editorial discretion as “a freestanding category of FirstAmendment-protected expression.” Pet. App. 45a. Even

worse, it directly contradicted this Court’s precedent by

holding that if “a firm’s core business is disseminating

others’ speech, then that should weaken, not strengthen,

the [business’s] argument that it has a First Amendment

right” not to disseminate speech. Pet. App. 106a. This

Court has repeatedly held that the First Amendment protects the right of private parties to exercise “editorial discretion in the selection and presentation” of speech.

Forbes, 523 U.S. at 674; see supra pp.19-20. As the Court

has explained, since “all speech inherently involves

choices of what to say and what to leave unsaid,” it is axiomatic that “one who chooses to speak may also decide

‘what not to say.’” Hurley, 515 U.S. at 573 (citation omitted). That remains equally true whether one publishes his

own speech, the speech of others, or both. See id.; PG&E,

475 U.S. at 11; Tornillo, 418 U.S. at 258.

The Fifth Circuit majority tried to evade that conclusion by insisting that HB20 regulates “conduct,” specifically “censorship.” Pet. App. 9a (emphases omitted). That

gets matters backward. Censorship occurs when the government tells private parties what they cannot say, not

when private parties decline to disseminate messages

with which they disagree. If labeling a private party’s editorial choices “censorship” sufficed to deprive those

choices of First Amendment protection, Tornillo, PG&E,

and Hurley (among others) would have come out the other

way. And governments could justify virtually any law

compelling private parties to display third-party speech.

By the majority’s logic, the New York Times engages in

unprotected “censorship” when it refuses to publish an

op-ed. Fox News engages in unprotected “censorship”

when it refuses to air an interview. The parade organizer

in Hurley engaged in unprotected “censorship” when it

excluded GLIB. But when governments declare “that a

private party . . . is a ‘censor,’” governments themselves

are the real censors, as they “interfere with” the “freedom

to speak as an editor.” Denver, 518 U.S. at 737-38 (plurality op.).

The majority fared no better with its suggestion that

First Amendment protection is contingent on a private

party accepting responsibility for the content subject to

its editorial discretion. Pet. App. 45a-46a. That requirement has no basis in law. Plus, covered websites do take

reputational responsibility for the speech on their services—as they can lose users and advertisers by disseminating objectionable speech and can be criticized by

States for their perceived liberal viewpoints or for supposedly insufficiently removing or restricting content. And to

the extent websites do not have legal responsibility for

third-party content, that is owing principally to Congress’s decision affording them protection against certain

types of lawsuits to foster their editorial control. See 47

U.S.C. § 230(c). Private speech does not lose First Amendment protection because the federal government chooses

to protect the speaker against some forms of liability.

To the extent the majority suggested some constitutional distinction between pre-publication and post-publication editorial discretion, Pet. App. 46a-47a, that too is

factually and legally unsustainable. Both forms of editorial discretion implement judgments about what speech is

worthy of presentation. Factually, covered websites constantly engage in pre-publication editorial discretion,

promulgating policies about acceptable expression and

“screen[ing] all content for” some kinds of “unacceptable

material.” Moody v. NetChoice, LLC, U.S. No. 22-277,

Pet. App. 85a (emphasis added). For instance, around 90%

of Facebook’s removals “[f]or many categories” of prohibited expression take place before “anyone reports it.”

J. A. 141a. Similarly, YouTube removes the majority of

policy-violating videos before they receive many, if any,

views. J. A. 120a. Nor do these websites lose First Amendment protection by using human-programmed “algorithms” in addition to human review, because those algorithms implement human judgments about how to organize content according to their websites’ (human-authored)

policies. Cf. Pet. App. 35a & n.8, 45a, 108a. As the district

court found, “algorithms do some of the work that a newspaper publisher previously did,” like “exercis[ing] editorial discretion.” Pet. App. 164a.

Legally, it does not matter when websites exercise editorial discretion, as governments cannot compel continued dissemination of speech any more than they can compel its dissemination in the first place. Private parties routinely engage in post-publication editorial discretion in

mediums such as “community bulletin boards,” “[c]omedy

clubs” hosting “open mic nights,” Halleck, 139 S. Ct. at

1930, bookstores, and live call-in shows. A broadcaster

does not lose First Amendment protection if it excises material from a rebroadcast that the five-second delay let

through. The result should be no different when it comes

to the Internet.

c. Rather than seriously grapple with the reasoning in

the long line of cases protecting editorial discretion, the

majority tried to limit Tornillo, PG&E, and Hurley to

their facts. Its efforts are unavailing.

The majority first tried to limit Tornillo and PG&E to

“newspaper[s] and newsletter[s] with significant space

constraints.” Pet. App. 40a. But Tornillo itself rejected

that rationale, reiterating that the First Amendment protects against compelled publication even when it would

not impose “additional costs” or require publishers to

“forgo publication” of other speech due to “finite” space.

418 U.S. at 257-58. And this Court has squarely rejected

the notion that such protection is limited to the “press”;

Tornillo repeatedly “has been applied to cases involving

expression generally.” Riley v. Nat’l Fed. of the Blind of

N. Carolina, Inc., 487 U.S. 781, 797 (1988). This Court

likewise held that the near-infinite space on the Internet

does not justify “qualifying” First Amendment protections for online speech. Reno, 521 U.S. at 870.

The majority next tried to limit Tornillo and PG&E to

laws where the obligation to display speech is “triggered

by a particular category of . . . speech and” access is

“awarded only to those who disagreed with the [publisher’s] views.” Pet. App. 42a (quoting PG&E, 475 U.S. at

13). That post-hoc gerrymander does not work either. As

illustrated by Hurley, whenever governments compel private entities to disseminate speech and change the content of their compilations, 515 U.S. at 573, governments

impose a “content-based penalty” on those entities,

Pet. App. 42a. Neither Tornillo nor PG&E would have

come out differently had the governments required those

private entities to distribute all viewpoints, instead of just

certain ones. HB20 compels websites to disseminate

speech of “those who disagree[] with [the websites’]

views” that the speech is not worthy of presentation.

PG&E, 475 U.S. at 13.

The majority also tried to distinguish Hurley on the

ground that the parade organizer was “‘intimately connected’ to” the message of the parade. Pet. App. 32a

(quoting Hurley, 515 U.S. at 576). But Hurley recognized that private entities are “intimately connected” to

the speech they compile and present—even when they

“fail” to “isolate an exact message.” Hurley, 515 U.S. at

569-70. And whatever “intimate connection” means, it

does not require a risk that the speech may be misperceived as having been created by the disseminator. The

compelled speech in Wooley was unconstitutional even

though every Granite State resident understood that the

State’s slogan was mandatory and not “intimately connected” to the driver. 430 U.S. at 713-15. No reasonable

observer would have thought the political candidate’s reply to the Miami Herald in Tornillo was the newspaper’s

own message. And there was zero risk of misattribution

in PG&E because the State commission specifically ordered the third party “to state that its messages are not

those of” the company. 475 U.S. at 7. Ordering private

entities to carry these messages violated the First

Amendment just the same.

d. Conversely, the Fifth Circuit majority placed outsized reliance on Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (“FAIR”), and

PruneYard Shopping Center v. Robins, 447 U.S. 74

(1980). Pet. App. 25a-26a, 30a-33a, 37a-41a, 44a. Neither

FAIR nor PruneYard involved private parties making editorial choices about what speech to publish. See FAIR,

547 U.S. at 64; PruneYard, 447 U.S. at 88. Both cases instead addressed in-person access to physical property.

See FAIR, 547 U.S. at 64-65 (military recruiters seeking

on-campus interview rooms); PruneYard, 447 U.S. at 77

(petition seekers accessing shopping mall). The PruneYard shopping mall “owner did not even allege that he objected to the content of the [speech].” PG&E, 475 U.S. at

12 (discussing PruneYard).

None of the majority’s cited authorities supports a

general governmental power to require private entities to

“host” others’ speech. E.g., Pet. App. 24a-28a, 32a-34a,

41a. This Court emphatically rejected such a governmental power grab: “[T]he constitutional issue in [PG&E and

Hurley] arose because the State forced one speaker to

host another speaker’s speech.” Agency for Int’l Dev. v.

All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2088 (2020)

(emphasis added). FAIR itself distinguished the “conduct” of 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.” 547 U.S. at 62-63 (emphasis added) (citing Hurley, PG&E, and Tornillo). Thus,

nothing in FAIR would require schools to publish military-preferred messages in their law reviews or invite

military speakers to lecture students.

B. The First Amendment’s protections for private

editorial discretion fully apply to websites.

1. The First Amendment fully applies to the Internet.

Presenting text, graphics, audio, and video on websites

qualifies as “publish[ing]” and “disseminat[ing]” speech

protected by the First Amendment. 303 Creative, 600 U.S.

at 594; Reno, 521 U.S. 853; see Lovell v. City of Griffin,

303 U.S. 444, 452 (1938) (the “press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion”).

There is “no basis for qualifying the level of First

Amendment scrutiny that should be applied” to the “Internet.” Reno, 521 U.S. at 853, 870; accord 303 Creative,

600 U.S. at 587 (collecting cases). This Court’s precedent

rejecting compelled speech dissemination therefore

applies equally to websites. See 303 Creative, 600 U.S. at

586 (discussing Hurley, 515 U.S. at 574; Tornillo, 418 U.S.

at 256). When “governments in this country have sought

to test these foundational principles,” this Court has rebuffed them. Id. at 585.

2. Websites like Facebook and YouTube are not common carriers that must display all user-submitted speech,

and governments violate the First Amendment by treating them as such.6

a. Covered websites under HB20 are not common carriers. They do not “hold themselves out as affording neutral, indiscriminate access to their platform without any

editorial filtering.” USTA, 855 F.3d at 392 (Srinivasan, J.,

concurring in denial of reh’g en banc). To the contrary,

they constantly engage in editorial filtering, providing curated experiences and limiting how their customers and

advertisers may use their websites, pursuant to policies

they publish and enforce. J. A. 84a-85a, 111a-15a, 139a,

141a.

For all these reasons, “Facebook, Google, Twitter, and

YouTube . . . are not considered common carriers.”

USTA, 855 F.3d at 392 (Srinivasan, J., concurring in denial of reh’g en banc). The distinctive feature of a common

carrier is that it “does not make individualized decisions,

in particular cases, whether and on what terms to deal.”

FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979)

(cleaned up). Texas enacted HB20 precisely because these

websites do not open themselves up to all third-party

speech, but rather make individualized determinations

about which speech to disseminate and how. That readily

The common-carrier portions of the opinion below were joined only

by Judge Oldham. Pet. App. 55a-80a, 110a-112a.

distinguishes them from services that merely facilitate individual-to-individual communication, like “phone companies” or “communications firms,” Pet. App. 106a-107a—

and makes them far different from “banks,” Pet. App. 2a,

and “shipping services,” Pet. App. 25a, 106a, which do not

publish speech at all. Federal law confirms as much. When

Congress protected websites’ rights to exclude speech in

47 U.S.C. § 230(c), it disclaimed any intent to treat such

websites “as common carriers,” id. § 223(e)(6). Congress

wanted to confirm these websites’ discretion to “filter,

screen, . . . disallow[,] pick, [and] choose . . . content,” id.

§ 230(f)(4), they “consider[]” “objectionable” without fear

of liability, id. § 230(c)(2)(A).

b. Texas cannot deprive websites of First Amendment

protections by forcing them to become common carriers.

E.g., FCC v. League of Women Voters of Cal., 468 U.S.

364, 379 (1984) (“transform[ing] broadcasters into common carriers . . . would intrude unnecessarily upon . . . editorial discretion”). “[I]mpos[ing] a form of common carrier obligation” is just another way to describe a law countermanding editorial discretion and thus cannot justify a

law that “burdens the constitutionally protected speech

rights” of private parties. Denver, 518 U.S. at 825-26

(Thomas, J., concurring in part and dissenting in part).

Accordingly, labeling HB20 “a common carrier scheme

has no real First Amendment consequences.” Id. at 825.

Even true common carriers and government-franchised monopolies retain the “right to be free from state

regulation that burdens” their decisions about which

speech to disseminate. PG&E, 475 U.S. at 17-18 (energy

monopoly); e.g., Denver, 518 U.S. at 738 (plurality op.) (cable operators).

3. Contrary to the majority’s passing suggestion, covered websites are not public forums, and governments

cannot transform private entities into “public square[s].”

Pet. App. 2a, 23a, 35a, 69a-70a, 84a. The First Amendment’s public-forum doctrine is limited to its “historic confines,” Forbes, 523 U.S. at 678—that is, when “government seeks to place [restrictions] on the use of its property,” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee,

505 U.S. 672, 678 (1992) (emphases added); see Halleck,

139 S. Ct. at 1930. So a newspaper, for instance, cannot

“permissibly be made to serve as a public forum.” Denver,

518 U.S. at 813 (Thomas, J., concurring in part and dissenting in part) (discussing Tornillo, 418 U.S. at 258).

Nothing in PruneYard suggests otherwise; again, the

shopping mall owner there “did not even allege that he

objected to the content of the [speech].” PG&E, 475 U.S.

at 12 (discussing PruneYard).

4. The Fifth Circuit majority further erred in holding

that 47 U.S.C. § 230’s protections for Internet websites

somehow diminish their First Amendment rights.

Pet. App. 51a. It is axiomatic that Acts of Congress cannot

override the Constitution. City of Boerne v. Flores, 521

U.S. 507, 519 (1997). In any event, Section 230 only underscores websites’ editorial discretion and First Amendment rights, as Congress enacted Section 230 to protect

their editorial discretion. See 47 U.S.C. § 230(c)(“Protection[s] for ‘Good Samaritan’ blocking and screening of offensive material”); id. § 230(f)(4) (protecting websites that

“filter, screen, . . . disallow[,] pick, choose, . . . organize,

[or] reorganize . . . content”).

The majority also incorrectly concluded that Section

230 “reflects Congress’s factual determination that the

Platforms are not ‘publishers.’” Pet. App. 51a. To the contrary, Congress enacted Section 230 precisely because

some courts had held that websites qualified as “publishers” under the common law’s definition when they

“ma[de] decisions as to content” because “such decisions

constitute editorial control.” Stratton Oakmont, Inc. v.

Prodigy Servs. Co., 1995 WL 323710, at *4 (N.Y. Sup. Ct.

May 24, 1995) (discussing Tornillo). Thus, far from

providing a basis to limit the First Amendment rights of

websites, Section 230 confirms their existence.

In all events, whether covered websites qualify as

“publishers” is beside the point, as this Court has not cabined the First Amendment’s protections against the compelled publication of third-party speech to any strict conception of “publishers.” See supra p.18-20 Thus, while

websites satisfy any definition of “publisher,” they enjoy

First Amendment protection when it comes to deciding

which speech to disseminate and how.

II. HB20 Section 7’s restrictions on viewpoint-based

editorial discretion violate the First Amendment.

HB20 Section 7’s strangling of websites’ editorial discretion violates the First Amendment. Section 7 not only

interferes with constitutionally protected editorial discretion, it does so based on content, speaker, and viewpoint—

triggering strict scrutiny multiple times over. Section 7

cannot survive any form of heightened scrutiny, let alone

strict scrutiny.7

A. HB20 Section 7 triggers strict scrutiny by

compelling speech dissemination based on

viewpoint, content, and speaker.

HB20 Section 7 triggers strict scrutiny in multiple

ways, and the Fifth Circuit majority erred by concluding

otherwise.

1. The “government has no power to restrict expression because of its message, its ideas, its subject matter,

or its content.” Brown, 564 U.S. at 790-91. “Content-based

laws—those that target speech based on its communicative content—are presumptively unconstitutional and

may be justified only if the government proves that they

The Fifth Circuit majority incorrectly claimed that Petitioners

brought only an “overbreadth” challenge. Pet. App. 9a, 15a. Petitioners argued that the challenged provisions “are facially unconstitutional in all applications,” raising overbreadth “[i]n the alternative.”

ECF 12 at 36, NetChoice, LLC v. Paxton, W.D. Tex. No. 1:21-cv00840 (emphasis added). Similarly, Petitioners argued on appeal that

“whenever HB20 applies, it unconstitutionally abridges editorial

judgment and compels speech.” CA5 Appellees’ Br., 2022 WL

1046833, at *44 n.17. Petitioners also prevail under the overbreadth

doctrine. Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2387

(2021) (“AFP”).

are narrowly tailored to serve compelling state interests.”

Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (citations

omitted). And laws that compel speakers to “alter the content of their speech” are necessarily “content based.”

Nat’l Inst. of Family Life Advocs. v. Becerra, 138 S. Ct.

2361, 2371 (2018) (“NIFLA”) (cleaned up); see, e.g., Hurley, 515 U.S. at 573; Riley, 487 U.S. at 795; PG&E, 475

U.S. at 9.

Section 7 is plainly content based, as it requires covered websites to alter the content of their speech. When

Facebook, YouTube, or X present speech to their users,

they convey a message about the type of speech the websites find acceptable and the communities they hope to

foster. “Since every participating unit affects the message

conveyed,” requiring a website to include speech it does

not want to include, or present speech in ways it would

rather not, necessarily alters the content of its message.

Hurley, 515 U.S. at 572-73. For example, by ordering

websites not to “ban,” “block,” or “remove” speech on the

basis of viewpoint, HB20 compels publication of pro-terrorist speech, like celebrations of ISIS’s terrorist attacks.

Tex. Civ. Prac. & Rem. Code § 143A.001(1). If HB20 is upheld, covered websites could not do anything to “discriminate” against speech on the ground that it celebrates terrorism or terrorists—including “de-boost[ing], restrict[ing], or deny[ing] equal access or visibility.” Id. Nor

could they prioritize authoritative news reports of terrorist attacks relative to celebrations of those atrocities, or

deny revenue sharing (“monetization”) because the expression contains a pro-terrorist “viewpoint.” Id.

That alone is enough to render Section 7 a contentbased requirement, yet HB20 draws other content-based

distinctions too. HB20 excludes some content from its

prohibition: (1) content 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”; or

(2) content 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.” Id. § 143A.006(a)(2)-(3). The district court correctly concluded there is “no legitimate reason to allow the platforms to enforce their policies over

threats based only on favored criteria but not other criteria like sexual orientation, military service, or union membership.” Pet. App. 175a (cleaned up).

What is more, the definition of “social media platform”

exempts certain websites “that consist[] primarily of

news, sports, entertainment, or other information or content that is not user generated.” Tex. Bus. & Com. Code

§ 120.001(1)(c)(i). While the Fifth Circuit majority insisted

that HB20’s definition of “social media platform” draws

distinctions based on “medium” rather than content,

Pet. App. 82a, that ignores that “medium[s]” are subject

to the statute’s onerous requirements only because of the

content of the speech they disseminate.

2. Regardless, characterizing HB20’s definition of “social media platform” as a medium-based distinction does

not solve the State’s problem. The practical effect of

HB20’s “news, sports, entertainment” carveout and its 50

million monthly U.S. user requirement is to single out a

few websites for disfavored treatment. This Court is

deeply skeptical of laws that “distinguish[] among

different speakers,” as “[s]peech restrictions based on the

identity of the speaker are all too often simply a means to

control content.” Citizens United v. FEC, 558 U.S. 310,

340 (2010). “Speaker-based laws run the risk that ‘the

State has left unburdened those speakers whose messages are in accord with its own.’” NIFLA, 138 S. Ct. at

2378 (citation omitted). Here, the Governor and legislators connected the dots by explaining that the law would

promote “conservative” viewpoints. J. A. 22a- 25a.

Skepticism about speaker-based discrimination has

special force when a law singles out for disfavored treatment some but not all of those in the business of disseminating speech. See Ark. Writers’ Project, Inc. v. Ragland,

481 U.S. 221, 228 (1987); Minneapolis Star & Tribune Co.

v. Minn. Comm’r of Revenue, 460 U.S. 575, 582-83 (1983);

Grosjean v. Am. Press Co., 297 U.S. 233, 250-51 (1936).

Laws that “discriminate among media, or among different

speakers within a single medium, often present serious

First Amendment concerns,” because they create very

real “dangers of suppression and manipulation” of the medium and risk “distort[ing] the market for ideas.” Turner,

512 U.S. at 559-61 (citation omitted).

HB20’s speaker distinctions trigger strict scrutiny. On

its face, HB20 singles out just a subset of websites, saddling them—and only them—with a slew of onerous burdens. The law’s size and revenue requirements are carefully gerrymandered to target “Silicon Valley,” while exempting smaller companies with a different perceived ideological bent. Worse still, HB20’s news, sports, and entertainment carveout means that “the basis on which [the

government] differentiates between” media is “its content,” which is “particularly repugnant to First

Amendment principles.” Ark. Writers’ Project, 481 U.S.

at 229. No legitimate “special characteristic,” Turner, 512

U.S. at 661, justifies the State’s distinctions. State officials’ declared purpose is to single out certain websites because of their perceived ideological bias.

The Fifth Circuit majority tried to distinguish Arkansas Writers’ Project, Minneapolis Star, and Grosjean on

the ground that “Section 7’s focus on a particular subset

of firms is not directed at suppressing particular ideas or

viewpoints.” Pet. App. 84a. But that is wrong both legally

and factually. This Court applied strict scrutiny to

speaker-based distinctions in Minneapolis Star and Arkansas Writers’ Project despite the absence of evidence

of “any impermissible or censorial motive on the part of

the legislature.” Minneapolis Star, 460 U.S. at 580, 58283; see Ark. Writers’ Project, 481 U.S. at 229-31 (same).

That is because laws singling out disfavored speakers

within a particular medium are inherently dangerous, as

they tend to skew the marketplace of ideas. See Turner,

512 U.S. at 641. A law that singles out the Washington

Post but not the New York Post may skew debate regardless of why that distinction was drawn. So too a law that

burdens Facebook and YouTube but not Gab or Truth Social. See Pet. App. 175a. As Minneapolis Star explained,

“[w]hatever the motive of the legislature . . . recognizing a

power in the State not only to single out the press but also

to tailor the [law] so that it singles out a few members of

the press presents such a potential for abuse that no

interest suggested by Minnesota can justify the scheme.”

460 U.S. at 591-92 (emphasis added).8

3. In addition, the Fifth Circuit majority was wrong to

conclude that HB20 does not suppress “particular ideas

or viewpoints.” Pet. App. 84a. If anything, this is a far easier case than Minneapolis Star and Arkansas Writers’

Project. Here, all signs point to the conclusion that HB20

“goes even beyond mere content discrimination, to actual

viewpoint discrimination.” R.A.V. v. City of St. Paul, 505

U.S. 377, 391 (1992). That impermissible motivation was

not even disguised, as HB20 was avowedly “designed” to

“target” certain “speakers and their messages for disfavored treatment.” Sorrell, 564 U.S. at 565. As the district

court found, the “record in this case confirms that the

Legislature intended to target large social media platforms perceived as being biased against conservative

views and the State’s disagreement with the social media

platforms’ editorial discretion over their platforms.”

Pet. App. 176a. The Governor and legislators repeatedly

and officially denounced “Silicon Valley” and “West Coast

Oligarchs” for supposedly “silenc[ing] conservative viewpoints and ideas,” declaring that HB20 sought to level

what they perceived as a tilted playing field. See supra

p.7; J. A. 21a, 23a. Such avowed efforts to “level the playing field” in favor of the State’s preferred viewpoints,

however, are strictly forbidden under the First

The majority also incorrectly dismissed Minneapolis Star and Arkansas Writers’ Project as limited to different taxation among publishers. Pet. App. 83a-85a. This Court has applied the same principles

to laws beyond tax statutes that burden First Amendment rights of

other entities, Citizens United, 558 U.S. at 342, including entities that

disseminate speech, Turner, 512 U.S. at 640-41.

Amendment—and attaching supposed partisan labels to

the side of the debate that would be leveled up only makes

matters worse. See Buckley, 424 U.S. at 48-49.

B. HB20 Section 7 fails strict scrutiny and any

other form of First Amendment scrutiny.

Because strict scrutiny applies, Respondent bears the

heavy burden of demonstrating that Section 7 is “the least

restrictive means of achieving a compelling state interest.” McCullen v. Coakley, 573 U.S. 464, 478 (2014); see

United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 827

(2000). Even under intermediate scrutiny, Texas would

have to prove that HB20 is “narrowly tailored to serve a

significant governmental interest.” Packingham v. North

Carolina, 582 U.S. 98, 105-06 (2017) (citation omitted); see

AFP, 141 S. Ct. at 2383. Respondent cannot come close.

1. Respondent has not identified a significant, let alone

compelling, justification for Texas’s content, speaker, and

viewpoint discrimination. To the extent Texas officials

sought to justify Section 7 on the theory that it has an interest in ensuring that the public has access to “conservative” speech, J. A. 22a-25a, that does not work. As Tornillo

explained, whatever interest the State may have had in

“ensur[ing] that a wide variety of views reach the public,”

that interest cannot justify compelling private parties to

disseminate content with which they disagree. 418 U.S. at

247-48, 258. Simply put, the “State may not burden the

speech of others in order to tilt public debate in a preferred direction.” Sorrell, 564 U.S. at 578-79; see Buckley,

424 U.S. at 48-49.

In concluding otherwise, the Fifth Circuit majority relied on this Court’s statement in Turner that ensuring

“the widespread dissemination of information from a

multiplicity of sources” is “a governmental purpose of the

highest order.” 512 U.S. at 662-63; Pet. App. 86a. But the

State lacks an interest in forcing private parties to speak

or stay silent so that other messages are amplified. E.g.,

Tornillo, 418 U.S. at 249, 251. Turner recognized a rare

exception to that rule based on the application of a content-neutral law to the “special physical characteristics”

of the cable medium. 512 U.S. at 640, 660-61. “When an

individual subscribes to cable,” the Court explained, “the

physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber’s home.”

Id. at 656. “A cable operator, unlike speakers in other media, can thus silence the voice of competing speakers with

a mere flick of the switch.” Id. That is why this Court held

that the government may, in those unique circumstances,

force cable operators to carry some broadcast-television

channels “to avoid the elimination of broadcast television.” Id. at 646; see Turner Broad. Sys., Inc. v. FCC, 520

U.S. 180, 189-90 (1997).

Turner’s rationale—like the rationale justifying differential treatment for the broadcast medium, e.g., Red

Lion Broad. Co. v. FCC, 395 U.S. 367 (1969)—is “not applicable to other speakers” or media, including the “Internet.” Reno, 521 U.S. at 868-69. When it comes to the Internet, there is “no basis for qualifying the level of First

Amendment scrutiny that should be applied to this medium.” Id. at 870. The Internet is “dynamic” and “multifaceted,” allowing anyone to easily “publish” speech on all

sorts of websites that increase in number by the day. Id.

at 853, 870. Like newspapers, websites such as Facebook

and YouTube do “not possess the power to obstruct readers’ access to other competing publications.” Turner, 512

U.S. at 656. A user who cannot spread her views on Facebook may use X or Truth Social. A user who cannot spread

his message on YouTube may try Rumble. While the “size

and success” of some websites may make them “an enviable vehicle for the dissemination” of views, that alone cannot justify countermanding their private editorial judgments. Hurley, 515 U.S. at 577-78. After all, no one thinks

the government has greater leeway to force Fox News or

the New York Times to publish the government’s preferred views simply because the publishers are popular.

2. Even if Respondent could articulate a compelling

(or even significant) governmental interest, HB20 still

fails heightened scrutiny. It is not even clear that Section

7’s ban on viewpoint discrimination meaningfully advances the State’s goal of disseminating a wide range of

views. To the contrary, it will often have the perverse effect of incentivizing websites to remove entire categories

of content, resulting in less speech, not more. After all, if

displaying speech criticizing terrorists triggers an obligation to display speech praising them, the rational course

is to remove all speech about terrorism. Advertisers and

users will demand nothing less.

Section 7’s ban on viewpoint discrimination not only

fails to meaningfully advance the State’s goals but is also

both overinclusive and underinclusive. HB20 is overinclusive because the definition of “social media platforms”

sweeps in all large websites regardless of whether they

disseminate their users’ viewpoints. Respondent has presented no evidence to justify painting with such a broad

brush, as HB20 regulates the unique editorial policies of

websites as diverse as Facebook and Pinterest. The statute is also hopelessly underinclusive. Texas has no explanation for the arbitrary size requirements that essentially

exempt social media sites with a different perceived ideological bent, like Parler and Gab. “Such underinclusiveness raises serious doubts about whether the government

is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” NIFLA, 138

S. Ct. at 2376 (cleaned up). In short, HB20 burdens too

much and furthers too little, and this one-sided tradeoff

falls short of what the First Amendment requires.

The Fifth Circuit majority suggested that HB20-covered websites’ “market dominance and network effects

make them uniquely in need of regulation.” Pet. App. 90a.

But the First Amendment protects the editorial-discretion rights of private entities, even if they allegedly have

a “monopoly of the means of communication.” Tornillo,

418 U.S. at 250. PG&E, for instance, involved a government-sanctioned energy monopoly, which nonetheless retained First Amendment editorial discretion. 475 U.S. at

17-18. Nor are the websites here anything akin to monopolies. Reno recognized “the Internet can hardly be considered a ‘scarce’ expressive commodity.” 521 U.S. at 870.

There are countless avenues for speech online, and the

mere fact that any one website is “unique” does not mean

it is a monopoly. 303 Creative, 600 U.S. at 592. Even “singular” and “notable” “outlet[s] for speech” do not justify

governmental attempts to “deny speakers the right ‘to

choose the content of their own messages.’” Id. (cleaned

up) (quoting Hurley, 515 U.S. at 573, 577-78). Nor does

size and success “support[] a claim that [those entities] enjoy an abiding monopoly of access to spectators” or justify

compelled speech. Hurley, 515 U.S. at 577-78. Otherwise,

the more successful the private entity, “the more easily

his voice could be conscripted to disseminate” speech—

“spell[ing]” the First Amendment’s “demise.” 303 Creative, 600 U.S. at 592.9

Moreover, HB20 is not properly designed to maximize

“the widespread dissemination of” all “information.”

Pet. App. 86a. HB20 excludes many Internet websites.

And the law seeks to advantage viewpoints objectionable

to websites over others that websites would prefer to disseminate. Either these websites must display viewpoints

against their will, or cease displaying other viewpoints

they consider useful to their communities. After all, Respondent has represented that covered websites can “remov[e] . . . entire categories of ‘content.’” CA5 Appellant’s

Br., 2022 WL 1046833, at *1 (emphasis added). That assertion is hard to reconcile with the State’s professed interest in maximizing speech. Nor would it alleviate the

constitutional problem, as it infringes websites’ rights to

disseminate the precise speech they choose.

The 50 million monthly U.S. user threshold also lacks any evidentiary basis in the legislative record. See Edenfield v. Fane, 507 U.S.

761, 770-71 (1993) (requiring more than “mere speculation or conjecture”). There is nothing akin to the “unusually detailed” legislative

findings that supported Turner’s must-carry law. 512 U.S. at 646. A

website with, say, 49 million U.S. users obviously contributes to the

“widespread dissemination” of information. Pet. App. 86a.

III. HB20 Section 2’s individualized-explanation

requirements violate the First Amendment.

HB20 Section 2 singles out State-disfavored websites

and compels them (and only them) to provide individual

explanations for each of the millions of times they refuse

to disseminate speech or take other content-moderation

actions. These broad requirements impose a massive burden that will chill the right of covered websites to exercise

editorial discretion. “What the First Amendment precludes the government from commanding directly, it also

precludes the government from accomplishing indirectly.” Rutan v. Republican Party of Ill., 497 U.S. 62, 7778 (1990). So these “content-based burdens must satisfy

the same rigorous scrutiny as . . . content-based bans.”

Playboy, 529 U.S. at 812.

A. HB20 Section 2 triggers strict scrutiny by

compelling speech and encumbering the

exercise of protected editorial discretion based

on content and speaker.

HB20 Section 2’s requirements trigger strict scrutiny

for multiple reasons. First, they again rely on the contentand speaker-based definition of “social media platforms.”

See supra pp.7-8, 37-40. Second, they compel covered

websites to alter the content of their speech both by compelling them to speak when they would rather not and by

burdening their exercise of editorial discretion. Riley, 487

U.S. at 795. Section 2’s requirements are akin to requiring

the New York Times or Wall Street Journal to explain

why it rejected each letter to the editor and placed particular articles on specific pages. And HB20 amplifies that

problem here by requiring websites to explain billions of

editorial decisions. Thus, much like the right-of-reply

statute burdened editorial discretion in Tornillo by imposing special burdens on newspapers that chose to criticize a political candidate, see 418 U.S. at 256-57, Section 2

imposes onerous burdens on websites that deprioritize or

decline to disseminate third-party speech. “Faced with

the penalties that would accrue” should such a decision be

deemed unjustified, a website “might well conclude that

the safe[r] course is to avoid controversy” by not exercising editorial discretion at all. Id. at 257. “Lawmakers may

no more silence unwanted speech by burdening its utterance than by censoring its content.” Sorrell, 564 U.S. at

566.

Those significant burdens on all types of speech make

this the very last context in which relaxed scrutiny under

Zauderer should apply. This Court has emphasized that

laws compelling disclosures are generally treated no differently from any other law compelling speech. E.g., NIFLA, 138 S. Ct. at 2377. Zauderer provides a narrow exception to that rule, permitting compelled disclosures in

the commercial advertising context—i.e., to “speech

which does no more than propose a commercial transaction.” City of Cincinnati v. Discovery Network, Inc., 507

U.S. 410, 423 (1993) (cleaned up). But this Court has never

applied Zauderer to uphold a speech mandate outside the

context of correcting misleading advertising.

In fact, this Court has consistently described Zauderer as limited to efforts to “combat the problem of inherently misleading commercial advertisements” by mandating “only an accurate statement.” Milavetz, Gallop &

Milavetz, P.A. v. United States, 559 U.S. 229, 250 (2010);

e.g., United States v. United Foods, Inc., 533 U.S. 405, 416

(2001) (declining to apply Zauderer where compelled subsidy was not “necessary to make voluntary advertisements nonmisleading for consumers”); Hurley, 515 U.S.

at 573 (describing Zauderer as permitting the government only to “requir[e] the dissemination of ‘purely factual and uncontroversial information’” in the context of

“commercial advertising”); In re R.M.J., 455 U.S. 191, 205

(1982) (invalidating commercial-speech mandate where

advertising “ha[d] not been shown to be misleading”).

Zauderer thus has no application here. Section 2’s requirements have nothing to do with advertising, let alone

with preventing misleading advertising. They are just designed to make it easier for the Texas Attorney General

to investigate and sue covered websites for perceived inconsistencies in how they exercise their editorial discretion. Under Zauderer, governments may have relatively

broader latitude to require a commercial entity that voluntarily advertises its services to include information that

makes that advertisement non-misleading. Because the

government can ban misleading advertisements without

running afoul of the First Amendment, see R.M.J., 455

U.S. at 203, it may preclude misleading commercial advertisements by requiring disclosures to ensure accuracy.

See Zauderer, 471 U.S. at 651. Zauderer cannot possibly

apply to compelled speech burdening a website’s editorial

discretion. That is particularly true when the entity has

not engaged in any advertising at all. Thus, HB20 Section

2 falls far outside Zauderer’s heartland.

B. HB20 Section 2 fails strict scrutiny and any

form of First Amendment scrutiny.

HB20 Section 2 fails strict scrutiny because it is not

“the least restrictive means of achieving a compelling

state interest.” AFP, 141 S. Ct. at 2383 (citation omitted).

Regardless, it would fail any form of First Amendment

scrutiny, including Zauderer’s test.

1. Neither the Fifth Circuit nor Respondent has identified a sufficient governmental interest in requiring websites to provide individualized explanations of editorial decisions.

The opinion below concluded that HB20 Section 2’s requirements further the State’s interest in “preventing deception of consumers.” Pet. App. 92a. In HB20, the Legislature made no such findings, and instead enacted HB20

to infringe private exercises of editorial discretion perceived to disadvantage conservative viewpoints.

Pet. App. 187a (legislative findings). Legislators and the

Governor admitted as much by declaring that HB20 promotes “conservative” speech. J. A. 22a-25a. Perhaps that

is why the Fifth Circuit could not explain what purported

deception HB20 addresses. If that were truly Texas’s concern, it already has laws preventing deceptive trade practices. See Tex. Bus. & Com. Code § 17.46. So Section 2’s

requirements serve as a “prophylaxis-upon-prophylaxis

approach,” which this Court’s precedent rejects. FEC v.

Cruz, 596 U.S. 289, 306 (2022).

The record shows that covered websites’ editorial decisions are not deceptive. The websites (1) tell users that

they remove and restrict some content, J. A. 111a, 141a42a; (2) publish their policies, J. A. 112a, 141a, 405a-479a;

and (3) engage in voluntary efforts to provide

explanations of some editorial decisions, J. A. 123a, 143a,

147a-48a. To be sure, covered websites’ existing transparency efforts may not provide all individualized details for

all their countless editorial decisions. J. A. 123a, 133a-35a,

147a-49a. But it “can hardly be a compelling state interest” for governments to address a “gap” in “voluntary” efforts. Brown, 564 U.S. at 803.

Texas lacks a sufficient interest in “subject[ing] the

editorial process to private or official examination merely

to satisfy curiosity or to serve some general end such as

the public interest.” Lando, 441 U.S. at 174. As Respondent has argued elsewhere, “‘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 11 (Aug. 16, 2022),

https://perma.cc/D5VT-8B4E (quoting Am. Meat Inst. v.

U.S. Dep’t of Agric., 760 F.3d 18, 31 (D.C. Cir. 2014) (Kavanaugh, J., concurring in the judgment)).

2. Even if the State had a sufficient governmental interest, HB20 Section 2 would not be sufficiently tailored

to furthering that interest.

Under Section 2, every time a covered website declines to disseminate content, it must “explain the reason

the content was removed” to the user. Tex. Bus. & Com.

Code § 120.103(a)(1). After providing notice, it must both

provide a complaint process, id. § 120.102, and “allow the

user to appeal the decision to remove the content,”

id. §§ 120.103(a)(2), 120.104. Once a user appeals, websites

have 14 business days, id. § 120.104, to provide their determination

and

explanation

the

user,

id. §§ 120.103(a)(3), 120.104. Websites must also disclose

“a description of each tool, practice, action, or technique

used in enforcing the acceptable use policy.”

Id. § 120.053(a)(7) (emphases added). And Section 2 requires broad disclosures into websites’ “content management”—including, for example, “specific information regarding the manner in which the social media platform . . .

curates and targets content to users”—which describes

the countless editorial decisions covered websites make

every day. Id. § 120.051(a).

Unrebutted evidence demonstrates that these would

be massive undertakings. In three months in 2021,

YouTube removed 9.5 million videos and over 1.16 billion

comments. J. A. 133a. YouTube provides appeals for video

deletions but not deletions for the far more numerous

comments, so it “would have to expand these [appeal] systems’ capacity by over 100X.” Id. And describing each

time a website, for instance, deprioritizes a piece of content relative to other content would be practically impossible: As Meta’s declarant testified, “I don’t even know or

understand the math that you would need to go through

to be able to calculate” deprioritization decisions—let

alone explain them all. J. A. 291a.

These requirements are far broader than necessary to

accomplish any interest beyond simply discouraging the

exercise of protected editorial discretion. They would require transformational changes to websites’ exercise of

editorial discretion. If the government forces websites to

create granular explanations for each of their billions of

editorial choices, they will have no choice but to display

speech against their will to avoid incurring massive costs.

Assuming it were even technologically feasible to track

and report every instance of deprioritization, for example,

maintaining the infrastructure necessary to do so would

be incredibly costly. This reality suggests that these provisions are not designed to prevent consumer deception,

but rather to chill the exercise of editorial discretion by

State-disfavored websites and force them to disseminate

speech against their will—as the Legislature expressly intended.

3. HB20 Section 2’s requirements are so burdensome

that they cannot pass even Zauderer. As this Court recently reiterated, the State has the burden to prove that

disclosure requirements are “neither unjustified nor unduly burdensome.” NIFLA, 138 S. Ct. at 2377. Yet the

Fifth Circuit barely even tried to explain how HB20’s disclosure requirements are “reasonably related to the

State’s interest in preventing deception of consumers.”

Zauderer, 471 U.S. at 651. Respondent has pointed to

nothing suggesting that consumers do not know that websites exercise editorial discretion or have been misled by

how they do so.

Respondent likewise did not even try to demonstrate

that its onerous disclosure rules are not unduly burdensome when balanced against any legitimate interests they

purport to serve—a concern that should have been front

and center given the sheer volume of mandated disclosures. Nor could he. As the district court explained, “Section 2’s disclosure and operational provisions are inordinately burdensome given the unfathomably large numbers of posts on these sites and apps.” Pet. App. 172a-73a.

They would effectively paralyze covered websites, underscoring that the State’s real goal is not to protect

consumers from deception, but to punish disfavored exercises of editorial discretion.

* * *

The First Amendment stands as a bulwark against

governmental control of the private marketplace of ideas.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what

shall be orthodox in politics, nationalism, religion, or other

matters of opinion.” Barnette, 319 U.S. at 642. Through

HB20, Texas has declared that all viewpoints are to be

equally orthodox on a targeted group of websites, which

must detail billions of their editorial decisions—or refrain

from such decisions altogether. In so doing, the State

seeks to make itself the arbiter of what speech private

publishers must disseminate and to replace their editorial

choices with the State’s own. That is unconstitutional.

There is no basis under this Court’s First Amendment

precedent or America’s history and tradition to create a

social-media-website exception to the freedoms of speech

or the press.

CONCLUSION

The Court should reverse the Fifth Circuit’s judgment.

Respectfully submitted.

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

COHN LLP

200 Massachusetts Ave.,

*Supervised by principals of

the firm who are members of Washington, DC 20001

(512) 693-8350

the Virginia bar.

scott@lkcfirm.com

Counsel for Petitioners

NOVEMBER 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.