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

Supreme Court briefDec 6, 2023

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Text

Nos. 22-555 & 22-277

In The

Supreme Court of the United States

NETCHOICE, LLC, D/B/A NETCHOICE, ET AL.,

Petitioners,

KEN PAXTON, ATTORNEY GENERAL OF TEXAS,

Respondent.

On Petition for Writs of Certiorari

to the United States Court of Appeals

for the Fifth and Eleventh Circuits

(For Continuation of Caption, See Inside Cover)

BRIEF OF AMICUS CURIAE

FOUNDATION FOR INDIVIDUAL RIGHTS

AND EXPRESSION IN SUPPORT OF

PETITIONERS IN NO. 22-555 AND

RESPONDENTS IN NO. 22-277

ABIGAIL E. SMITH

Foundation for

Individual Rights

and Expression

510 Walnut St.

Suite 900

Philadelphia, PA

19106

ROBERT CORN-REVERE

Counsel of Record

Foundation for Individual

Rights and Expression

700 Pennsylvania Ave.

Suite 340

Washington, DC 20003

(215) 717-3473

bob.corn-revere@thefire.org

Counsel for Amicus Curiae

Nos. 22-555 & 22-277

In The

Supreme Court of the United States

ASHLEY MOODY, ATTORNEY GENERAL,

STATE OF FLORIDA, ET AL.,

Petitioners,

NETCHOICE, LLC, D/B/A NETCHOICE, ET AL.,

Respondents.

TABLE OF CONTENTS

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

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

INTRODUCTION ........................................................ 2

SUMMARY OF ARGUMENT ..................................... 6

ARGUMENT ............................................................... 9

I. The Basic Principles of Freedom of Speech and

the Press Govern These Cases. ............................. 9

A. These Cases Involve Government Media

Regulation ....................................................... 10

B. The Fifth Circuit Misapplied the Concept of

Censorship ...................................................... 16

II. Content Moderation Restrictions and

Individualized Explanation Requirements Violate

the First Amendment .......................................... 20

A. Content Moderation Decisions Are Part of the

Speech Process Protected by the First

Amendment..................................................... 20

B. Individualized Explanation Requirements

Violate the First Amendment ........................ 28

CONCLUSION .......................................................... 33

TABLE OF AUTHORITIES

Cases:

Page(s)

303 Creative LLC v. Elenis, 600 U.S. 570 (2023) ..... 14

American Beverage Assn. v. San Francisco, 871 F.3d

(9th. Cir. 2017) ..................................................... 32

American Meat Inst. v. USDA, 760 F.3d 18 (D.C. Cir.

2014) (en banc) ..................................................... 32

ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012)

.............................................................................. 25

Ameritech Corp. v. United States, 867 F. Supp. 121

(N.D. Ill. 1994)...................................................... 15

Anderson v. City of Hermosa Beach, 621 F.3d 1051

(9th Cir. 2010) ...................................................... 12

Associated Press v. United States, 326 U.S. 1 (1945)

.............................................................................. 26

Bartnicki v. Vopper, 532 U.S. 514 (2001) ................. 25

Brown v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011)

.................................................................... 5, 11, 12

Buckley v. Valeo, 424 U.S. 1 (1976) .......................... 34

C&P Tel. Co. of Va. v. United States, 42 F.3d 181

(4th Cir. 1994), vacated as moot, 516 U.S. 416

(1996) .................................................................... 15

Chester v. TJX Companies, Inc., 2016 WL 4414768

(C.D. Cal. Aug. 18, 2016) ..................................... 17

Citizens United v. FEC, 558 U.S. 310 (2010) ..... 22, 23

Columbia Broad. Sys., Inc. v. Democratic Nat’l

Comm., 412 U.S. 94 (1973) .................................. 21

iii

Counterman v. Colorado, No. 22-138, 600 U.S. 66

(2023) ...................................................................... 1

FCC v. League of Women Voters of Cal., 468 U.S. 364

(1984) ...................................................................... 5

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of

Bos., 515 U.S. 557 (1995) ............................... 22, 32

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) . 5

Kovacs v. Cooper, 336 U.S. 77 (1949).......................... 5

Lindke v. Freed, No. 22-611 (2023) ................... 2, 3, 13

Los Angeles v. Preferred Commc’ns, Inc., 476 U.S.

488 (1986) ....................................................... 22, 26

Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038

(2021) ...................................................................... 1

Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct.

1921 (2019) ................................................. 8, 16, 17

McConnell v. FEC, 540 U.S. 93 (2003), rev’d in part,

Citizens United v. FEC, 558 U.S. 310 (2010) ...... 23

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241

(1974) .................................. 7, 11, 19, 20, 21, 23, 26

Mills v. Alabama, 384 U.S. 214 (1966) ..................... 21

Minneapolis Star & Tribune v. Minn. Com’r of

Revenue, 460 U.S. 575 (1983) ........................ 12, 23

Murthy v. Missouri, No. 23-411 (2023) ................. 3, 20

NAM v. SEC, 800 F.3d 518 (D.C. Cir. 2015) ............ 32

National Inst. of Fam. and Life Advocs. v. Becerra,

138 S. Ct. 2361 (2018) .................................... 32, 33

Near v. Minnesota, 283 U.S. 697 (1931) ................... 12

NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196

(11th Cir. 2022) ............................... 3, 6, 11, 16, 19,

25, 26, 27, 31, 33

NetChoice, LLC v. Bonta, No. 22-CV-08861-BLF,

2023 WL 6135551 (N.D. Cal. Sept. 18, 2023) . 1, 29

NetChoice, LLC v. Paxton, 49 F.4th 439 (5th Cir.

2022) ................................ 3, 7, 8, 11, 12, 13, 16, 17,

18, 20, 23, 24, 25, 30, 31

O’Connor-Ratcliffe v. Garnier, No. 22-234 (2023) .. 2, 3

Packingham v. North Carolina, 582 U.S. 98, 104

(2017) .................................................................. 3, 6

Post v. Payton, 323 F. Supp. 799 (E.D.N.Y. 1971) ... 18

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

(1980) .................................................................... 11

Reno v. ACLU, 521 U.S. 844 (1997) ..............................

.................................................. 5, 6, 8, 9, 15, 16, 26

Riley v. Nat’l Fed’n of Blind of N.C., Inc., 487 U.S.

781 (1988) ............................................................. 33

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 547 U.S. 47 (2006) ........................... 11

Smothers v. Columbia Broad. Sys., Inc., 351 F. Supp.

622 (C.D. Cal. 1972) ............................................. 18

Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) ..... 25

Telescope Media Grp. v. Lucero, 936 F.3d 740 (8th

Cir. 2019) .............................................................. 25

Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023) ........ 29

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994)

.................................................................. 11, 14, 22

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

(2000) ...................................................................... 5

United States v. O’Brien, 391 U.S. 367 (1968) ......... 25

U.S. Telecom Ass’n v. FCC, 855 F.3d 381 (D.C. Cir.

2017) ..................................................................... 14

U.S. West, Inc. v. United States, 48 F.3d 1092 (9th

Cir. 1995), vacated as moot, 516 U.S. 1165 (1996)

.............................................................................. 15

Volokh v. James, 656 F. Supp. 3d 431 (S.D.N.Y. 2023)

.......................................................................... 2, 29

Washington Post v. McManus, 944 F.3d 506 (4th Cir.

2019) ................................................... 11, 23, 31, 33

Zauderer v. Office of Disciplinary Counsel of Supreme

Court of Ohio, 471 U.S. 626 (1985).......... 31, 32, 33

Constitution and Statutes:

1996 Telecommunications Act, Pub. L. No. 104-104,

§ 302(b)(1), 110 Stat. 124 (1996).......................... 15

California Age-Appropriate Design Code Act, Cal. Civ.

Code § 1798.99.28 ................................................ 28

Fla. Stat. § 501.2041(1)(c) ........................................... 2

Fla. Stat. § 501.2041(1)(d) ........................................... 2

Fla. Stat. § 501.2041(1)(e) ........................................... 2

Fla. Stat. § 501.2041(1)(f) ........................................... 2

Fla. Stat. § 501.2041(2)(h) .......................................... 2

Tex. Bus. & Commerce Code § 120.102 .................... 30

Tex. Bus. & Commerce Code § 120.103 .................... 30

Tex. Bus. & Commerce Code § 120.104 .................... 30

Tex. Bus. & Commerce Code § 120.151 .................... 30

Tex. Civ. Prac. & Rem. Code § 143A.002(a) ......... 2, 10

Other Materials:

Ilya Shapiro, The Cancellation of Josh Hawley’s Book

Deal Isn’t a First Amendment Issue, Jan. 11, 2021

https://www.cato.org/commentary/cancellationjosh-hawleys-book-deal-isnt-first-amendmentissue, https://perma.cc/6FYF-F7LJ ..................... 18

Ithiel de Sola Pool, Technologies of Freedom (Harv.

Univ. Press 1983) ................................................... 3

Josh Hawley (@HawleyMO), Twitter (Jan. 7, 2021

6:42 PM), https://twitter.com/HawleyMO/status/

1347327743004995585,

https://perma.cc/V66SYLN4 .................................................................... 18

Josh Hawley, The Tyranny of Big Tech (2021) ........ 18

Laurence H. Tribe, The Constitution in Cyberspace:

Law and Liberty Beyond the Electronic Frontier,

Keynote Address at the First Conference on

Computers, Freedom & Privacy (Mar. 26, 1991) .. 4

M. Ethan Katsh, The Electronic Media and the

Transformation of Law (Oxford Univ. Press 1989)

................................................................................ 4

Ethan Katsh, The First Amendment and

Technological Change: The New Media Have a

Message, 57 Geo. Wash. L. Rev. 1459 (1989) ........ 4

News Release, Ron DeSantis, Governor, Fla., Governor

Ron DeSantis Signs Bill to Stop the Censorship of

Floridians by Big Tech (May 24, 2021),

https://www.flgov.com/2021/05/24/governor-ron-

vii

desantis-signs-bill-to-stop-the-censorship-offloridians-by-big-tech,

https://perma.cc/QGD953BE ....................................................................... 2

P.J. O’Rourke, Parliament of Whores (Atlantic

Monthly Press: New York, 1991)......................... 34

Press Release, Greg Abbott, Governor, Tex., Governor

Abbott

Signs

Law

Protecting

Texans

From Wrongful Social Media Censorship (Sept. 9,

2021), https://gov.texas.gov/news/post/governorabbott-signs-law-protecting-texans-fromwrongful-social-media-censorship,

https://perma.cc/3MZ3-CV4T................................. 2

Robert Corn-Revere, New Technology and the First

Amendment: Breaking the Cycle of Repression, 17

Hastings Comm/Ent L.J. 247 (1994) ..................... 4

INTEREST OF AMICUS CURIAE1

The Foundation for Individual Rights and

Expression (FIRE) is a nonpartisan, nonprofit

organization dedicated to defending the individual

rights of all Americans to free speech and free

thought—the essential qualities of liberty. Since 1999,

FIRE has successfully defended First Amendment

rights on college campuses nationwide through public

advocacy, targeted litigation, and amicus curiae

filings in cases that implicate expressive rights. In

June 2022, FIRE expanded its public advocacy beyond

the university setting and now defends First

Amendment rights both on campus and in society at

large. See, e.g., Brief of FIRE as Amicus Curiae in

Support of Respondents, Mahanoy Area Sch. Dist. v.

B.L., 141 S. Ct. 2038 (2021); Brief of FIRE as Amicus

Curiae in Support of Petitioner and Reversal,

Counterman v. Colorado, 600 U.S. 66 (2023).

In lawsuits across the United States, FIRE seeks

to vindicate First Amendment rights without regard

to the speakers’ political views. These cases include

matters involving state attempts to regulate the

internet and social media platforms. See, e.g.,

NetChoice, LLC v. Bonta, No. 22-CV-08861-BLF, 2023

1 Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part, and that no person

other than amicus or its counsel contributed money intended to

fund preparing or submitting this brief.

WL 6135551 (N.D. Cal. Sept. 18, 2023); Volokh v.

James, 656 F. Supp. 3d 431 (S.D.N.Y. 2023). See also

Brief of FIRE as Amicus Curiae in Support of

Petitioner, Lindke v. Freed, No. 22-611 (2023); Brief of

FIRE as Amicus Curiae in Support of Respondent,

O’Connor-Ratcliffe v. Garnier, No. 22-234 (2023).

INTRODUCTION

Responding to the perception that large social

media companies were enforcing their terms of service

to discriminate against conservative politicians and

pundits, Texas and Florida enacted laws giving each

state control over the platforms’ content management

process.2 Florida targeted so-called “deplatforming” of

political candidates, speech about candidates, or

journalistic enterprises, Fla. Stat. §§ 501.2041(1)(c) –

(f), 501.2041(2)(h), while Texas prohibited “viewpointbased” moderation practices. TEX. CIV. PRAC. & REM.

CODE § 143A.002(a). The Circuit courts that reviewed

these laws reached opposite conclusions, with the

See, e.g., News Release, Ron DeSantis, Governor, Fla.,

Governor Ron DeSantis Signs Bill to Stop the Censorship of

Floridians

Big

Tech

(May

24,

2021),

https://www.flgov.com/2021/05/24/governor-ron-desantis-signsbill-to-stop-the-censorship-of-floridians-by-big-tech,

https://perma.cc/QGD9-53BE; Press Release, Greg Abbott,

Governor, Tex., Governor Abbott Signs Law Protecting Texans

From Wrongful Social Media Censorship (Sept. 9, 2021),

https://gov.texas.gov/news/post/governor-abbott-signs-lawprotecting-texans-from-wrongful-social-media-censorship,

https://perma.cc/3MZ3-CV4T.

Eleventh Circuit upholding an injunction of the

Florida law on First Amendment grounds, NetChoice,

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

and the Fifth Circuit overturning injunctive relief.

NetChoice, LLC v. Paxton, 49 F.4th 439 (5th Cir.

2022). This Court has agreed to address the dispute

between the circuits.

The importance of the issues now before the Court

cannot be overstated. Along with the other cases on

this term’s docket (Lindke v. Freed, No. 22-611

(argued Oct. 31, 2023), O’Connor-Ratcliffe v. Garnier,

No. 22-234 (argued Oct. 31, 2023), and Murthy v.

Missouri, No. 23-411 (pet’n for cert. granted Oct. 20,

2023)), this Court must determine the relationship

between the government and the most powerful

communications medium the world has ever seen. As

the Court has observed, cyberspace and “social media

in particular,” have become “the most important

places . . . for the exchange of views.” Packingham v.

North Carolina, 582 U.S. 98, 104 (2017). The two

questions presented here collapse to one overriding

issue—whether the government or private actors

shall have the predominant role in this arena.

The Framers of the Constitution faced the same

fundamental question when they adopted the First

Amendment. In contrast to European governments,

which reacted to the printing press by fashioning

various ways to control and censor it, see Ithiel de Sola

Pool, Technologies of Freedom 15–16 (Harv. Univ.

Press 1983); M. Ethan Katsh, The Electronic Media

and the Transformation of Law 137–38 (Oxford Univ.

Press 1989), “[b]y adopting the First Amendment, the

United States became the first nation to embrace the

new technology as an essential component of its

political system.” Robert Corn-Revere, New

Technology and the First Amendment: Breaking the

Cycle of Repression, 17 Hastings Comm/Ent L.J. 247,

264–65 (1994); see also M. Ethan Katsh, The First

Amendment and Technological Change: The New

Media Have a Message, 57 Geo. Wash. L. Rev. 1459,

1466–72 (1989) (similar). From the beginning, the

press—the only private enterprise mentioned in the

Constitution—was freed from government control in

order to preserve personal and political freedom.

While the printing press was “born free” in the

United States by virtue of the First Amendment, each

advance in technology required relearning this lesson.

This resulted from a “curious judicial blindness, as if

the Constitution had to be reinvented with the birth

of each new technology.” Laurence H. Tribe, The

Constitution in Cyberspace: Law and Liberty Beyond

the Electronic Frontier, Keynote Address at the First

Conference on Computers, Freedom & Privacy (Mar.

26, 1991). The problem was repeated with cinema,

broadcast radio and television, and cable television,

among other emerging media. See, e.g., Corn-Revere,

supra, at 265–68. Throughout much of the twentieth

century, this Court treated each new medium as “a

law unto itself.” Kovacs v. Cooper, 336 U.S. 77, 97

(1949) (Jackson, J., concurring).

This began to change as the Court recognized that,

while each method of communication may present “its

own peculiar problems,” the “basic principles of

freedom of speech and the press, like the First

Amendment’s command, do not vary. Those

principles . . . make freedom of expression the rule.”

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503

(1952). Although it took decades, this Court

ultimately made “freedom of expression the rule” for

cinema, id. at 501–02, broadcasting, FCC v. League of

Women Voters of Cal., 468 U.S. 364, 378 (1984), cable

television, United States v. Playboy Ent. Grp., 529

U.S. 803, 815 (2000), and interactive media, Brown v.

Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011) (“‘the

basic principles of freedom of speech and the

press . . . do not vary’ when a new and different

medium for communication appears”) (quoting Joseph

Burstyn, Inc., 343 U.S. at 503).

In one important respect the internet broke with

this pattern. Unlike every other new medium, this

Court recognized at the outset that “our cases provide

no basis for qualifying the level of First

Amendment scrutiny that should be applied to this

medium.” Reno v. ACLU, 521 U.S. 844, 870 (1997).

This was because the Court knew it was dealing with

“a unique and wholly new medium of worldwide

human communication” that had not been subject to

“government supervision and regulation” as had other

media. Id. at 850, 867–70. In the years since that

landmark decision, the Court has continued to

appreciate that the “forces and directions of the

Internet are so new, so protean, and so far reaching

that courts must be conscious that what they say

today might be obsolete tomorrow,” and that it is

necessary to “exercise extreme caution” before ceding

government authority over it. Packingham, 582 U.S.

at 105.

This case, and the others under consideration this

Term, will determine the future of freedom of speech

online.

SUMMARY OF ARGUMENT

The Eleventh and Fifth Circuits reached opposite

conclusions about the constitutionality of social media

content regulation because they proceeded from

fundamentally different premises. The Eleventh

Circuit enjoined Florida’s “deplatforming” law

because it viewed social media platforms as “a new

and different medium for communication” to which

“the basic principles of freedom of speech and the

press” apply. Netchoice v. Att’y Gen., Fla., 34 F.4th at

1203. The Fifth Circuit rejected media regulation as

the proper framework, and instead concluded that

First

Amendment

precedents

governing

pamphleteers’ access to shopping malls and military

recruiters’ access to law schools permit government

control of platforms’ “conduct.” Paxton, 49 F.4th at

455, 460–62. The Eleventh Circuit is right and the

Fifth Circuit is not—and this case shows how starting

off in the wrong direction inevitably leads to the

wrong destination.

This is just one of the ways the Fifth Circuit got off

on the wrong foot. It was both facile and fallacious for

that court to reject Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974), as a controlling

precedent on the asserted ground that online

platforms differ from twentieth century newspapers

in how they respectively select and exclude content.

See Paxton, 49 F.4th at 459–60. The Fifth Circuit tried

to conceal the absence of supporting precedent for its

conclusions by going on offense and proclaiming

(among other things) “the Platforms have pointed to

no case applying the overbreadth doctrine to protect

censorship rather than speech.” Id. at 451. But this

misses the point in two elementary ways: First, it

confuses private editorial decisions with censorship,

and second, it cannot mask the court’s failure to cite a

single case about media regulation that supports its

conclusion.

The Fifth Circuit’s most fundamental mistake was

its equating private moderation decisions with

censorship. It overlooked the foundational concept

that the First Amendment “constrains governmental

actors and protects private actors.” Manhattan Cmty.

Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019).

And

performed

this

act

doctrinal

transubstantiation through incantation rather than

by resort to logic or precedent. This error is so stark,

so obvious, and so flamboyantly wrong, that the

dissent below was able to sum up the problem in eight

words: “The majority’s perceived censorship is my

perceived editing.” Paxton, 49 F.4th at 496

(Southwick, J., dissenting).

Once the Fifth Circuit’s false premises are

revealed, the correct result snaps into focus. Content

moderation decisions are editorial choices about what

third-party speech to transmit via social media

platforms, and state intervention into that process

violates the First Amendment. The Fifth Circuit’s

assertion that this Court has never upheld

“freestanding” protection for editorial discretion

simply misreads the law. At various times and for

diverse media, this Court has upheld protection for

editing as part of the speech process. Governmental

efforts to single out a piece of that process to regulate

it as “conduct” are fundamentally illegitimate.

The Fifth Circuit’s further conclusion that

moderation decisions don’t “qualify” as editorial

choice because they largely take place after material

is posted ignores this Court’s recognition in Reno that

the internet deserves full protection despite its

differences with traditional media. Quite to the

contrary—it receives maximum First Amendment

protection because of those differences. Reno, 521 U.S.

at 850–51.

Likewise, state efforts to regulate how platforms

respond to complaints about their moderation

practices intrude deeply into the editorial process and

violate the First Amendment. The Texas prohibition

against “viewpoint based” moderation dictates the

substance of platforms’ editorial policies and directly

infringes their constitutional prerogatives. But even if

the law did not affect the content of moderation

policies, the process burdens alone are excessive.

Large social media platforms deal with many millions

of posts daily; requiring them to provide a “detailed

rationale” for each contested moderation decision on a

short time frame is an impossible burden even under

the most lenient level of First Amendment review.

However, the Court should take this opportunity to

clarify that strict scrutiny applies to any state

supervision of this process.

ARGUMENT

I. The Basic Principles of Freedom of Speech

and the Press Govern These Cases.

The NetChoice cases involve government

regulation of content carried on a medium of

communication, and once they are understood as

such, basic First Amendment principles govern the

outcome. The Fifth Circuit erred by ignoring this

context.

A. These Cases Involve Government

Media Regulation.

Texas law prohibits large social media platforms

from engaging in viewpoint-based moderation of

users’ posts and requires them to have an appeal

process for removed posts and to respond to

complaints within 14 business days.3 The Florida law

bars removing certain users, and likewise requires

platforms to explain and justify their decisions to the

state’s satisfaction. The specific features of these two

schemes don’t matter that much; the point is, both

impose state supervision over content moderation for

private speech forums.

The Fifth Circuit found no First Amendment

problem with this at all, concluding that “the State

can regulate conduct in a way that requires private

entities to host, transmit, or otherwise facilitate

3 HB 20 prohibits large social media platforms from blocking,

banning, removing, deplatforming, demonetizing, de-boosting,

restricting, denying equal access or visibility to, or otherwise

discriminating against expression based on “the viewpoint of the

user or another person,” the “viewpoint represented in the user’s

expression or another person’s expression,” or the user’s

“geographic location” in the state. TEX. CIV. PRAC. & REM. CODE

§ 143A.002(a).

speech.” Paxton, 49 F.4th at 455. It refused to view

platforms’ rules for hosted content as part of any

editorial process and went even further to assert that

this Court’s cases “do not carve out ‘editorial

discretion’ as a special category of First-Amendmentprotected expression.” Id. at 463. This cluster of

fallacies is, as the Fourth Circuit put it in a related

context, “a compendium of traditional First

Amendment infirmities.” Washington Post v.

McManus, 944 F.3d 506, 513, 515 (4th Cir. 2019).

The Fifth and Eleventh Circuits’ divergent

conclusions were predictable. The Eleventh Circuit

viewed platform regulation primarily through the lens

of cases involving media regulation, such as Tornillo

and Turner Broadcasting System, Inc. v. FCC, 512

U.S. 622 (1994). Consequently, it reaffirmed that

“whatever the challenges of applying the Constitution

to ever-advancing technology, the basic principles of

freedom of speech and the press, like the First

Amendment’s command, do not vary when a new and

different medium for communication appears.”

NetChoice v. Att’y Gen., Fla., 34 F.4th at 1203 (quoting

Ent. Merchs. Ass’n, 564 U.S. at 790).

In sharp contrast, the Fifth Circuit majority

reached its conclusions by extracting what it believed

were controlling principles from cases that have

nothing to do with media, like PruneYard Shopping

Center v. Robins, 447 U.S. 74 (1980), and Rumsfeld v.

Forum for Academic & Institutional Rights, Inc., 547

U.S. 47 (2006) (FAIR). Only by doing so could it find

the Texas law “does not regulate the Platforms’ speech

at all.” Paxton, 49 F.4th at 448. Such a stunning

pronouncement can follow only from ripping case

holdings from their proper context.

The cases now before the Court are not about

handing out leaflets at a shopping mall or making

space for military recruiters at a law school. They are

about the degree to which the government can

regulate a global medium of communication. Laws

that target a particular medium regulate speech,

regardless of how those regulations may be

characterized. Near v. Minnesota, 283 U.S. 697, 720

(1931) (“Characterizing the publication as a business,

and the business as a nuisance does not permit an

invasion of the constitutional immunity against

restraint.”). This is true even for measures that do not

overtly call out “speech” per se. See, e.g., Minneapolis

Star & Tribune Co. v. Minn. Com’r of Revenue, 460

U.S. 575, 582 (1983) (tax on ink and paper “burdens

rights protected by the First Amendment”). The First

Amendment protects the “process of expression

through a medium” as well as “the expression itself.”

Anderson v. City of Hermosa Beach, 621 F.3d 1051,

1061–62 (9th Cir. 2010). Consequently, this Court

observed, “[w]hether government regulation applies

to creating, distributing, or consuming speech makes

no difference.” Ent. Merchs. Ass’n, 564 U.S. at 792 n.1.

During the recent argument in Lindke v. Freed,

Justice Kagan raised a note of caution about

approaching the subject of internet regulation by

analogy to unrelated situations. She observed “it’s

hard to predict the future, but change has happened

very quickly in the last however many years and is

going to continue to happen” as online media become

more central to our lives. Lindke v. Freed, No. 22-611,

Arg. Tr. 75 (Oct. 31, 2023). Drawing on hypothetical

examples like talking to a public official in a grocery

store does not really “tak[e] into account the big

picture.” Id. at 75–76. Same here. Rulings about

shopping malls and campus-based military recruiters

do not answer the central question in these cases:

What is the proper relation between the government

and the internet?

In only one limited respect did the Fifth Circuit

consider this as a problem of media regulation. Judge

Oldham, writing only for himself, concluded that

Texas could regulate social media platforms as

common carriers, and that imposing a nondiscrimination requirement presented no First

Amendment problem. Paxton, 49 F.4th at 469–79. His

analysis drew primarily on nineteenth century

precedents on common carriage and public

accommodations from long before the development of

First Amendment jurisprudence. Other amici will

ably address why Judge Oldham’s common carrier

analogy is inapt, and how his analysis fails to account

for the differences between the telegraph or telephone

services and mass media distributors, including social

media platforms.

It suffices to note for present purposes that this

Court has recently reaffirmed that public

accommodation concepts do not trump the First

Amendment. See 303 Creative LLC v. Elenis, 600 U.S.

570, 599–600 (2023). Distinguishing FAIR, this Court

observed in 303 Creative that, notwithstanding public

accommodation laws, “no government . . . may affect a

‘speaker’s message’ by ‘forcing’ her to ‘accommodate’

other views; no government may ‘alter’ the ‘expressive

content’ of her message; and no government may

‘interfere with’ her ‘desired message.’” Id. at 596

(cleaned up). Likewise, no government may force a

multimedia platform to “become” a common carrier.

See, e.g., U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 418

(D.C. Cir. 2017) (Kavanaugh, J., dissenting from

denial of en banc review).

Cases striking down the federal law that barred

telephone companies from providing cable television

service affirmed this principle. That law, in effect,

required the phone companies to provide only common

carrier service and not to act as electronic publishers

on the theory that they could monopolize the

multichannel video medium. Applying this Court’s

then-recent ruling in Turner Broadcasting, lower

courts uniformly invalidated the restrictions as

violating the First Amendment.4

Just as the government cannot compel a platform

to remain a common carrier, it cannot force it to

become one. As the Fourth Circuit explained, “[t]he

First Amendment’s problem with Section 533(b) [of

the Communications Act] is that the provision does

not allow the telephone companies to engage in

protected speech, that is, the provision, with editorial

control, of cable television services.” C&P Tel. Co. of

Va., 42 F.3d at 189 n.10 (emphasis in original). These

decisions were rendered moot after Congress lifted the

telco-cable ban in the 1996 Telecommunications Act.

See Pub. L. No. 104-104, § 302(b)(1), 110 Stat. 124

(1996). But the controlling principle remains: The

First Amendment restricts forced common carrier

requirements.

The Court should address this case in its proper

context—as requiring the setting of correct

constitutional boundaries for regulating a medium of

communications. And it should reaffirm this Court’s

conclusion in Reno, that there is “no basis for

qualifying the level of First Amendment [protection]”

4 See C&P Tel. Co. of Va. v. United States, 42 F.3d 181, 203

(4th Cir. 1994), vacated as moot, 516 U.S. 416 (1996); U.S. West,

Inc. v. United States, 48 F.3d 1092, 1097–98 (9th Cir. 1995),

vacated as moot, 516 U.S. 1165 (1996); Ameritech Corp. v. United

States, 867 F. Supp. 121 (N.D. Ill. 1994); BellSouth Corp. v.

United States, 868 F. Supp. 1335 (N.D. Ala. 1994).

for this “unique and wholly new medium of worldwide

human communication.” Reno, 521 U.S. at 870.

B. The Fifth Circuit Misapplied the

Concept of Censorship.

The premise of the Florida and Texas laws of

preventing “censorship” by social media platforms

misconceives basic constitutional concepts. Again, the

Eleventh Circuit got it right when it observed, “[o]ne

of those ‘basic principles’—indeed, the most basic of

the basic—is that ‘[t]he Free Speech Clause of the

First Amendment constrains governmental actors

and protects private actors.’” NetChoice v. Att’y Gen.,

Fla., 34 F.4th at 1203 (quoting Halleck, 139 S. Ct. at

1926).

The Fifth Circuit, conversely, tries to justify

intervention into the inner workings of social media

moderation by invoking the state’s claim that it needs

to prevent “censorship” by the platforms. Paxton, 49

F.4th at 455 (“We reject the Platforms’ efforts to

reframe their censorship as speech.”). Apparently

believing that repetition makes it so, the majority

opinion invokes the word “censor” or “censorship” 145

times.

This is sophistry, not legal reasoning. No amount

of repetition can convert a private editorial choice into

an act of illegal censorship. “The text and original

meaning of [the First and Fourteenth] Amendments,

as well as this Court’s longstanding precedents,

establish that the Free Speech Clause prohibits only

governmental abridgment of speech. The Free Speech

Clause does not prohibit private abridgment of

speech.” Halleck, 139 S. Ct. at 1928. The Fifth

Circuit’s obsessive misuse of the term “censorship”

brings to mind Inigo Montoya’s immortal words from

The Princess Bride: “You keep using that word. I don’t

think it means what you think it means.”5

Indeed, it doesn’t. Yet the Fifth Circuit majority

boldly takes ownership of this error at every turn. It

mischaracterizes the platforms’ arguments as

promoting an “unenumerated right to muzzle speech”

which Judge Oldham misleadingly reframes as a

claim that “corporations have a freewheeling First

Amendment right to censor what people say.” Paxton,

49 F.4th at 445. The majority further describes the

platforms’ arguments as “a rather odd inversion of the

First Amendment” and concludes the Texas law “does

not chill speech; if anything, it chills censorship.” Id.

at 445, 448.

But it is the Fifth Circuit majority that has weirdly

inverted the First Amendment. Judge Southwick,

writing in dissent, crystalized the problem concisely

by observing “[t]he majority’s perceived censorship is

5 See Chester v. TJX Companies, Inc., 2016 WL 4414768, at

*1 (C.D. Cal. Aug. 18, 2016) (quoting The Princess Bride, Act III

Communications and Twentieth Century Fox 1987).

my perceived editing.” Id. at 496 (Southwick, J.,

dissenting). Debunk the load-bearing premise of

“private censorship” and the rest of the majority

opinion collapses of its own dead weight.

Such confusion is to be expected when questions of

censorship get politicized. After Simon & Schuster

canceled a contract to publish Senator Josh Hawley’s

book (ironically, The Tyranny of Big Tech) because of

his actions related to the January 6, 2021 attack at

the Capitol, he claimed it was “a direct assault on the

First Amendment.”6 Nonsense. No one has a “right” to

have their words printed and distributed by their

preferred publisher. See Ilya Shapiro, The

Cancellation of Josh Hawley’s Book Deal Isn’t a First

Amendment

Issue,

Jan.

11,

2021,

https://www.cato.org/commentary/cancellation-joshhawleys-book-deal-isnt-first-amendment-issue,

https://perma.cc/6FYF-F7LJ. For the same reason,

comedians Tom and Dick Smothers had no valid First

Amendment claim when the CBS network canceled

“The Smothers Brothers Comedy Hour.” Smothers v.

Columbia Broad. Sys., Inc., 351 F. Supp. 622, 627

(C.D. Cal. 1972) (quoting Post v. Payton, 323 F. Supp.

799, 803-04 (E.D.N.Y. 1971) (“It is only governmental

6 Josh Hawley (@HawleyMO), Twitter (Jan. 7, 2021, 6:42 PM),

https://twitter.com/HawleyMO/status/1347327743004995585,

https://perma.cc/V66S-YLN4.

action which can violate the First and Fourteenth

Amendments.”)).

The Florida and Texas legislatures were quite

candid in their reasons for passing these two laws—to

even out what they saw as a political playing field.

Unlike the Fifth Circuit, the Eleventh Circuit saw this

partisan power play for what it was and observed “this

would be too obvious to mention if it weren’t so often

lost or obscured in political rhetoric—platforms are

private enterprises, not governmental (or even quasigovernmental) entities.” NetChoice v. Att’y Gen., Fla.,

34 F.4th at 1204. Accordingly, “no one has a vested

right to force a platform to allow her to contribute to

or consume social-media content.” Id.

While the states argue they should be permitted to

intervene because of the massive power of “Big Tech,”

this Court rejected the same argument based on

“corporate power” in Tornillo. It noted that the press,

as understood by the Framers in 1791, was very

different in the modern age, and that both electronic

media and print publications had become enormously

powerful and influential in their capacity “to

manipulate popular opinion and change the course of

events.” Tornillo, 418 U.S. at 248–49. Nevertheless, it

unanimously rejected resorting to the coercive power

of government as a cure, which it found “at once brings

about a confrontation with the express provisions of

the First Amendment.” Id. at 254. The Court

concluded “it has yet to be demonstrated how

governmental regulation of [editorial control and

judgment] can be exercised consistent with First

Amendment guarantees of a free press.” Id. at 258.

That conclusion applies equally here.7

II. Content

Moderation

Restrictions

and

Individualized Explanation Requirements

Violate the First Amendment.

When viewed through the proper framework, the

right result in the NetChoice cases is obvious. The

government is asserting authority over social media

platforms’ choices regarding what content they carry

and how they should prioritize and display it. First

Amendment violations rarely are more manifest.

A. Content Moderation Decisions Are

Part

of the

Speech

Process

Protected by the First Amendment.

The Fifth Circuit’s failure to apply settled First

Amendment principles to limit the regulation of

content moderation flows from two fundamental

errors. First, it failed to acknowledge well-established

protections for the editorial function and concluded—

without any relevant citations—that this Court’s

cases “do not carve out ‘editorial discretion’ as a

7 To the extent the Court is concerned about unreviewable

viewpoint-based moderation decisions where the government is

involved, it will have the opportunity to address that issue in

Murthy v. Missouri, No. 23-411.

special category of First-Amendment-protected

expression.” Paxton, 49 F.4th at 463. But it also

erroneously assumed that moderation decisions don’t

reflect editorial judgments and that Texas law “does

not regulate the Platforms’ speech at all; it protects

other people’s speech and regulates the Platforms’

conduct.” Id. at 448 (emphases in original). Both are

false premises.

First, this Court has long held that the First

Amendment protects editorial decision-making, even

when it consists of deciding only what material to

exclude. As former Chief Justice Warren Burger

wrote: “For better or worse, editing is what editors are

for; and editing is selection and choice of material.”

Columbia Broad. Sys., Inc. v. Democratic Nat’l

Comm., 412 U.S. 94, 124 (1973) (emphasis added)

(upholding broadcasters’ refusal to air political issue

advertising). The Court made this point forcefully in

Tornillo, which rejected a similar attempt by Florida

to mandate that a media platform—there, a

newspaper—provide

evenhanded

political

commentary. The Court acknowledged that the

regulation sought to achieve the “undoubtedly

desirable goal” of a “responsible press.” Tornillo, 418

U.S. at 256. Yet good intentions did not excuse

government “intrusion into the function of editors.”

Id. at 258; see also Mills v. Alabama, 384 U.S. 214, 220

(1966) (“no test of reasonableness can save [such] a

state law from invalidation as a violation of the First

Amendment”).

The Court has emphasized that protection for

editorial discretion is not limited to newspaper or

broadcast editors alone. Rather, it is an expansive

concept that applies whenever a private actor chooses

to transmit some but not other expression, no matter

the format. Cable operators, for example, “engage in

and transmit speech,” and are protected by the First

Amendment when they “‘exercise editorial discretion

over which stations or programs to include in their

repertoire.’” Turner Broad. Sys., 512 U.S. at 636–37

(quoting Los Angeles v. Preferred Commc’ns, Inc., 476

U.S. 488, 494 (1986)) (cleaned up). And a parade

organizer exercises “the autonomy to choose the

content of his own message” when he selectively

allows some groups to march with the parade, but not

others. Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Bos., 515 U.S. 557, 573 (1995).

Editorial selection is protected because it is a

crucial part of the speech process, and it cannot be

disaggregated and regulated separately as “conduct”

without undermining the First Amendment. This is

because “[l]aws enacted to control or suppress speech

may operate at different points in the speech process.”

Citizens United v. FEC, 558 U.S. 310, 336 (2010). As

Justice Scalia cautioned, “[c]ontrol any cog in the

machine, and you can halt the whole apparatus.

License printers, and it matters little whether authors

are still free to write. Restrict the sale of books, and it

matters little who prints them.” McConnell v. FEC,

540 U.S. 93, 251 (2003) (Scalia, J., concurring in part

and dissenting in part), rev’d in part, Citizens United,

558 U.S. at 365–66; see also McManus, 944 F.3d at 518

(“the integrity of the newsroom does not readily

permit mandated interaction with the government”).

The Fifth Circuit’s failure to recognize editorial

discretion as “a freestanding category of FirstAmendment-protected expression,” Paxton, 49 F.4th

at 464, results from asking the wrong question. See

also id. at 463, 465, 492. Editing is neither

“freestanding,” nor is it a “category”—it is integral to

the communication process. And the purpose of the

First Amendment is to prevent the government from

placing its thumb on the scale at any point in that

process.

The Court has on that basis invalidated numerous

measures that restrict speech at different stages,

including “requiring a permit at the outset,”

burdening speech “by impounding proceeds on

receipts or royalties,” imposing “a cost after the speech

occurs,” and “subjecting the speaker to criminal

penalties.” Citizens United, 558 U.S. at 336–37

(citations omitted); see also Minneapolis Star, 460

U.S. at 592–93 (invalidating tax on newsprint and

ink). Likewise, supervising social media platforms’

editorial choices is an obvious and basic First

Amendment violation. Tornillo, 418 U.S. at 256

(“compulsion to publish that which ‘reason tells

[editors]

should

not

published’

unconstitutional”).

But the Fifth Circuit’s error did not end with its

rejecting constitutional protection for the editorial

function. It also concluded that platforms’ moderation

decisions don’t “qualify” as editing because platforms

make their content selection decisions at a different

point in the speech process. Paxton, 49 F.4th at 464.

Unlike newspaper editors and cable operators who

select material “before that content is hosted,

published, or disseminated,” social media platforms

generally apply moderation decisions to material

already posted by users. Id. at 464–65, 492–93.

According to the Fifth Circuit, this different

sequencing converts the platforms’ management of

speech into “conduct” and its private decisions into

“censorship.” Id. at 448, 459–62.

But why? This conclusion hinges on the court’s

bald assertion that ex ante content selection decisions

are sacrosanct, but ex post moderation choices lack

constitutional protection. Yet both involve decisions

about what speech to disseminate to the public, so one

act cannot be considered “conduct” any more than the

other. And both involve private decision-making, so no

amount of semantic alchemy can transform such

choices into “censorship.”

The First Amendment is not so easily evaded.

“Speech is not conduct just because the government

says it is.” Telescope Media Grp. v. Lucero, 936 F.3d

740, 752 (8th Cir. 2019). Otherwise, the government

could claim “publishing a newspaper is conduct

because it depends on the mechanical operation of a

printing press.” Id. This Court has long understood

that “the creation and dissemination of information

are speech within the meaning of the First

Amendment,” Sorrell v. IMS Health, Inc., 564 U.S.

552, 570 (2011), and that “if the acts of ‘disclosing’ and

‘publishing’ information do not constitute speech, it is

hard to imagine what does fall within that category,

as distinct from the category of expressive conduct.”

Bartnicki v. Vopper, 532 U.S. 514, 526–27 (2001)

(citation omitted) (regulating the disclosure of

information is “a regulation of pure speech . . . not a

regulation of conduct”); see also ACLU of Ill. v.

Alvarez, 679 F.3d 583, 603 (7th Cir. 2012) (a statute

that targets communication technology “burdens First

Amendment rights directly, not incidentally”).8

Editorial decisions are pure speech, not some form of

symbolic expression like burning a draft card. See. e.g., United

States v. O’Brien, 391 U.S. 367 (1968). Accordingly, the Eleventh

Circuit’s secondary rationale, that moderation decisions might

be classified as “expressive conduct” undervalues the First

The Fifth Circuit’s attempt to cabin online

platforms as mere “conduits” to distinguish them from

newspapers, Paxton, 49 F.4th at 460, ignores this

Court’s findings from Reno that “the Internet is a

unique and wholly new medium of worldwide human

communication” that is “constantly evolving” to allow

both individual and group communication and where

service providers perform multiple roles. Reno, 521

U.S. at 850–51 (cleaned up). As noted, moderation

decisions for third-party speech in this singular

medium generally are made after the fact because,

unlike with traditional newspapers, it is possible for

individual users to post content without prior review

by anyone. That difference does not alter the fact that

moderation decisions are editorial choices, nor does it

justify the Fifth Circuit’s attempt to analyze this case

as if it involved a siloed communications technology of

the nineteenth or twentieth centuries.

When an online platform demotes certain speech

via algorithm or removes other content from its

platform entirely, it signals to users that such speech

is not worthy of their time, and that it “should not be

published.” Tornillo, 418 U.S. at 254 (quoting

Associated Press v. United States, 326 U.S. 1, 20 n.18

(1945)); accord Preferred Comms., Inc., 476 U.S. at

494 (“[B]y exercising editorial discretion over which

Amendment interests at stake. See NetChoice v. Att’y Gen., Fla.,

34 F.4th at 1214.

stations or programs to include in its repertoire,

respondent seeks to communicate messages on a wide

variety of topics and in a wide variety of formats.”).

The Eleventh Circuit understood this fact while

Judge Oldham did not. It observed that “social-media

platforms aren’t ‘dumb pipes’: They’re not just servers

and hard drives storing information or hosting blogs

that anyone can access, and they’re not internet

service providers reflexively transmitting data from

point A to point B. Rather, when a user visits

Facebook or Twitter . . . she sees a curated and edited

compilation of content from the people and

organizations that she follows.” NetChoice v. Att’y

Gen., Fla., 34 F.4th at 1204. This is the essence of

editorial discretion. Platforms “invest significant time

and resources into editing and organizing—the best

word, we think, is curating—users’ posts into

collections of content that they then disseminate to

others.” Id. at 1204–05. By this process, “platforms

develop particular market niches, foster different

sorts of online communities, and promote various

values and viewpoints.” Id. at 1205.

Once these moderation decisions are correctly

understood as private editorial choices, the First

Amendment leaves the government no legitimate

supervisory role. This Court should hold that both the

Florida and Texas laws are unconstitutional for that

reason.

B. Individualized Explanation Requirements Violate the First Amendment.

Just as the First Amendment bars state

governments from dictating platforms’ moderation

policies, it also prohibits forcing platforms to explain

or justify their editorial decisions. The Fifth Circuit

erred in upholding a requirement that platforms must

establish an appeal process and explain content

removal decisions within 14 business days, while the

Eleventh Circuit correctly held that requiring

platforms to provide a “thorough explanation” of each

moderation decision likely violates the First

Amendment. These respective provisions differ

somewhat but implicate the same First Amendment

concern: intrusion into the function of editors.

Any law authorizing state oversight of moderation

decisions intrudes deeply into platforms’ editorial

prerogatives. It does not matter whether platforms

enforce their “own” policies. Imposing time limits on

the review process and empowering government

functionaries to assess the adequacy of platforms’

responses is a significant burden. For that reason, two

federal district courts correctly enjoined laws in New

York and California that sought to empower the states

to oversee platforms’ moderation and complaint

procedures.

New York adopted what it called a “Hateful

Conduct Law” that required platforms to provide a

mechanism for users to complain about instances of

“hateful conduct” and to disclose how they responded

to any such complaints. Volokh, 656 F.Supp.3d at

437–38. California passed an Age-Appropriate Design

Code Act that required platforms to design their

services and features to avoid “harm” to minors, and

also to enforce their “published terms, policies, and

community standards” subject to state supervision.

Bonta, 2023 WL 6135551, at *14. In both cases, the

courts held that state oversight of the complaint

process unconstitutionally disrupts private editorial

choice. See Volokh, 656 F. Supp. 3d at 442 (“Plaintiffs

have an editorial right to keep certain information off

their websites and to make decisions as to the sort of

community they would like to foster on their

platforms.”); Bonta, 2023 WL 6135551, at *15 (state

oversight “flies in the face of a platform’s First

Amendment right to choose in any given instance to

permit one post but prohibit a substantially similar

one”).

Even if state supervision would not affect the

substance of platforms’ moderation decisions, the

process-burdens alone violate the First Amendment

because of the sheer scale of the platforms’ operations.

As this Court recently observed in Twitter, Inc. v.

Taamneh, “for every minute of the day, approximately

500 hours of video are uploaded to YouTube, 510,000

comments are posted on Facebook, and 347,000

tweets are sent on Twitter.” 598 U.S. 471, 480 (2023).

The platforms’ content removal takes place on a

similar scale. For example, “YouTube removed over a

billion comments in a three-month period in 2020.”

Paxton, 49 F.4th at 487. That translates to YouTube

removing over ten million comments a day.

The administrative burden of the Texas law that

requires platforms to act on complaints within 48

hours, decide appeals from those decisions within 14

days, and to provide a detailed rationale for each

would be staggering. TEX. BUS. & COM. CODE

§§ 120.102–104. Now, imagine a similar requirement

multiplied by 51 jurisdictions if Texas can impose

such a scheme.

The Fifth Circuit’s response was essentially to say,

“what burden?” It dismissively waved away any

thought that individualized explanation requirements

might be problematic by stating social media

platforms “already provide an appeals process

substantially similar to what [the law] requires for

most other categories of content they host.” Paxton, 49

F.4th at 487. But it is one thing for platforms to allow

users to complain and appeal a particular moderation

decision; it is quite another for the government to

dictate when and how that process must proceed

under the gaze of state bureaucrats who can haul

platforms into court and collect investigative costs

and attorney’s fees for any infraction. TEX. BUS. &

COM. CODE § 120.151. “It is the presence of

compulsion from the state itself that compromises the

First Amendment.” McManus, 944 F.3d at 515.

The Eleventh Circuit held that Florida’s similar

requirement that platforms provide a detailed

justification for every content-moderation action

likely violates the standard set forth in Zauderer v.

Office of Disciplinary Counsel of Supreme Court of

Ohio, 471 U.S. 626 (1985). NetChoice v. Att’y Gen.,

Fla., 34 F.4th at 1230. The Fifth Circuit agreed that

Zauderer set the correct standard but concluded the

Texas law “easily passes muster” thereunder. Paxton,

49 F.4th at 487. Once again, the Eleventh Circuit got

it right while the Fifth Circuit did not—at least with

respect to the First Amendment burden. But both

courts erred in using Zauderer as the benchmark.

The error is quite basic: Zauderer applies to the

regulation of potentially deceptive commercial

advertising, not editorial choices. Under this test, nonintrusive disclosure requirements may be permissible

as a minimally restrictive measure to guard against

potentially misleading commercial speech. Zauderer’s

intrusion on the speech rights of advertisers was

premised solely on “the State’s interest in preventing

deception of consumers.” 471 U.S. at 651. Even in that

context, however, any required disclosures are limited

to “purely factual and uncontroversial information

about the terms under which . . . services will be

available” and the requirements could not be

“unjustified or unduly burdensome.” Id. This Court

has confirmed that Zauderer’s test for requiring

disclosures

does

not

apply

outside

those

circumstances. See National Inst. of Fam. and Life

Advocs. v. Becerra, 138 S. Ct. 2361, 2372 (2018)

(NIFLA) (citing Hurley, 515 U.S. at 573).9

It is a misnomer to describe the Texas and Florida

explanation and appeal mandates as “disclosure”

requirements. They bear no relationship to the types

of commercial safeguards that concerned this Court in

Zauderer—preventing hidden charges for services or

other similar problems. Instead, the laws at issue

dictate how editorial decisions must be made,

communicated, and justified. Such requirements

compel platforms to “speak a particular message” and

accordingly should be subject to strict scrutiny.

9 In recent years, Zauderer has undergone something of a

“mission creep.” In various cases, circuit courts held that

compelled commercial disclosures could be required to serve

government interests other than just preventing potential

deception. See, e.g., American Meat Inst. v. USDA, 760 F.3d 18

(D.C. Cir. 2014) (en banc); NAM v. SEC, 800 F.3d 518 (D.C. Cir.

2015); American Beverage Ass’n v. San Francisco, 871 F.3d 884

(9th. Cir. 2017). This Court has not yet addressed this trend, and

in NIFLA declined to decide whether Zauderer was the correct

standard for certain of the disclosures at issue. Instead, it held

the compelled disclosure requirements were unconstitutional

regardless of the test. NIFLA, 138 S. Ct. at 2377. Here, the Court

should take the opportunity to halt Zauderer’s doctrinal

expansion, and to confine it to cases of potentially deceptive

commercial speech.

NIFLA, 138 S. Ct. at 2371 (citing Riley v. Nat’l Fed’n

of Blind of N.C., Inc., 487 U.S. 781, 795 (1988)).

Ultimately, requiring platforms to justify and

explain moderation decisions is unconstitutional

under any First Amendment standard. See NIFLA,

138 S. Ct. at 2377 (“We need not decide whether the

Zauderer standard applies” to hold disclosure

requirements

are

“unjustified

unduly

burdensome.”); McManus, 944 F.3d at 520 (finding it

unnecessary to choose a level of scrutiny to hold that

burdensome

disclosure

requirements

are

unconstitutional). The numbers speak for themselves

where “[t]he targeted platforms remove millions of

posts per day.” NetChoice v. Att’y Gen., Fla., 34 F.4th

at 1230. For a task of this magnitude, the notice

requirements and the level of detail required to

explain each moderation decision alone renders the

law excessively burdensome. See NIFLA, 138 S. Ct. at

2378. Nevertheless, the Court should clarify that

Zauderer is confined to deceptive commercial speech

cases and hold that the First Amendment precludes

state control of social media moderation policies.

CONCLUSION

The Texas and Florida legislatures became

convinced large social media companies were making

moderation decisions to their political disadvantage,

so they decided to even the score. They passed laws

that placed those decisions under state supervision,

forgetting “the concept that government may restrict

the speech of some elements of our society in order to

enhance the relative voice of others is wholly foreign

to the First Amendment.” Buckley v. Valeo, 424 U.S.

1, 48–49 (1976). To paraphrase P.J. O’Rourke, giving

state legislatures such power over social media

platforms “is like giving whiskey and car keys to

teenage boys.” P.J. O’Rourke, Parliament of Whores

xviii (Atlantic Monthly Press: New York, 1991).

Nothing good can come of it, and only this Court can

stop it.

December 6, 2023

Respectfully Submitted,