Amicus Curiae Brief — NetChoice, LLC, dba NetChoice, et al., Petitioners v. Ken Paxton, Attorney General of Texas
Supreme Court briefDec 7, 2023
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Text
Nos. 22-277 and 22-555
In the Supreme Court of the United States
_______________
ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA,
ET AL., PETITIONERS
v.
NETCHOICE, LLC D/B/A NETCHOICE, ET AL.
_________________________
NETCHOICE, LLC D/B/A NETCHOICE,
ET AL., PETITIONERS
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS
_________________________
On Writs of Certiorari to the United States Courts of Appeals
for the Fifth and Eleventh Circuits
_________________________
BRIEF FOR REDDIT, INC. AS AMICUS CURIAE
IN S UPPORT OF R ESPONDENTS IN N O. 22-277
AND P ETITIONERS IN NO. 22-555
_________________________
Ryan T. Mrazik
Anna Mouw Thompson
PERKINS COIE LLP
1201 Third Avenue,
Suite 4900
Seattle, WA 98101-3099
Benjamin S. Lee
Amalia L. Fenton
REDDIT, INC.
548 Market Street,
Suite 16093
San Francisco, CA 94104-5401
Michael R. Huston
Counsel of Record
PERKINS COIE LLP
2901 North Central Avenue
Suite 2000
Phoenix, AZ 85012-2788
(202) 434-1630
mhuston@perkinscoie.com
Stephanie Duchesneau
PERKINS COIE LLP
700 Thirteenth Street N.W.,
Suite 800
Washington, DC 20005-3960
i
TABLE OF CONTENTS
Interest of the Amicus Curiae ........................................... 1
Summary of Argument ....................................................... 2
Argument ............................................................................. 4
A. Reddit’s experience demonstrates how HB
20 and SB 7072 enable platforms to be
sued for content moderation that advances
free-speech and free-association rights. ............... 5
B. Government interference through laws like
Texas’s and Florida’s infringes on the
speech and associational rights of Reddit
and its users. .......................................................... 10
1. The content-moderation restrictions in
HB 20 and SB 7072 undermine Redditors’
self-governance, their ability to define and
enforce their own content rules in their
spaces, and their right to expressive
association. ....................................................... 10
2. The “censorship” restrictions in HB 20
and SB 7072 undermine the voting system
on Reddit, where individual users express
themselves by upvoting or downvoting
content that they embrace or reject.............. 15
3. The individualized-explanation
requirements in HB 20 and SB 7072
would create insurmountable burdens to
Reddit’s user-led model. ................................. 18
Conclusion .......................................................................... 20
ii
TABLE OF AUTHORITIES
CASES
PAGE(S)
303 Creative LLC v. Elenis,
600 U.S. 570 (2023) ................................................. 17, 19
Boy Scouts of Am. v. Dale,
530 U.S. 640 (2000) ......................................... 4, 9, 12, 14
Buckley v. Valeo,
424 U.S. 1 (1976) ........................................... 4, 14, 17, 19
Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Boston,
515 U.S. 557 (1995) ..................................................... 4, 9
Miami Herald Pub. Co. v. Tornillo,
418 U.S. 241 (1974) ......................................................... 4
Reno v. American Civ. Liberties Union,
521 U.S. 844 (1997) ......................................................... 4
Roberts v. U.S. Jaycees,
468 U.S. 609 (1984) ................................................... 4, 16
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) ................................................... 4, 17
U.S. Telecom Ass’n v. FCC,
855 F.3d 381 (D.C. Cir. 2017) ...................................... 13
STATUTES
Fla. Stat. § 501.2041(1)(f ) ................................................. 17
Fla. Stat. § 501.2041(2)(b).................................................. 13
Fla. Stat. § 501.2041(2)(c) .................................................. 13
Fla. Stat. § 501.2041(2)(d).................................................. 17
Fla. Stat. § 501.2041(2)(g).................................................. 16
iii
Fla. Stat. § 501.2041(2)(j)................................................... 16
Tex. Bus. & Com. Code § 120.001(1) ................................ 19
Tex. Bus. & Com. Code § 120.103(a)(2)............................ 18
Tex. Bus. & Com. Code § 120.104 ..................................... 18
Tex. Civ. Prac. & Rem. Code § 143A.001(1) ...... 3, 9, 10, 15
Tex. Civ. Prac. & Rem. Code § 143A.002(a) ................ 8, 10
Tex. Civ. Prac. & Rem. Code § 143A.003......................... 10
Tex. Civ. Prac. & Rem. Code
§ 143A.007(b)(2) ................................................................. 8
RULES
Supreme Court Rule 37.6 .................................................... 1
In the Supreme Court of the United States
_______________
Nos. 22-277 AND 22-555
ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA,
ET AL., PETITIONERS
v.
NETCHOICE, LLC DBA NETCHOICE, ET AL.
_________________________
NETCHOICE, LLC D/B/A NETCHOICE,
ET AL., PETITIONERS
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS
_________________________
On Writs of Certiorari to the United States Courts of Appeals
for the Fifth and Eleventh Circuits
____________
BRIEF FOR REDDIT, INC. AS AMICUS CURIAE
IN S UPPORT OF R ESPONDENTS IN N O. 22-277
AND P ETITIONERS IN NO. 22-555
____________
INTEREST OF THE AMICUS CURIAE 1
Reddit, Inc. provides a platform for Internet users
(called “Redditors”) to connect with each other in online
communities (called “subreddits”) that are based on
shared interests and governed by volunteer users (called
“moderators”). 2 Reddit is one of the most popular sites on
the Internet, with more than 50 million active users every
Pursuant to this Court’s Rule 37.6, counsel for amicus curiae
states that no counsel for any party authored this brief in whole or in
part, and no party or counsel for a party, or any other person other
than amici curiae and its counsel, made a monetary contribution to
fund the preparation or submission of this brief.
1
2
REDDIT, https://www.reddit.com (last visited Dec. 4, 2023).
2
day. Reddit utilizes a community-based approach to content moderation: it relies primarily on individual users to
establish and enforce their own rules governing what topics are acceptable and how those topics may be discussed
in each subreddit, and to vote on what content should rise
in prominence on the platform. The display of content on
Reddit is thus primarily driven by humans—not by centralized algorithms.
Reddit is a vibrant place for free expression that provides opportunities for Redditors to find community, belonging, and discourse with other people all across the
world. Reddit was also one of the first companies to be
named as a defendant in a lawsuit under Texas’s House
Bill 20 (HB 20) after a Reddit user was sanctioned by
other users for breaking a rule against making rude comments in a forum for discussing Star Trek. That meritless
litigation demonstrates the severe and immediate threat
that both HB 20 and Florida Senate Bill 7072 (SB 7072)
pose to free expression online.
SUMMARY OF ARGUMENT
A. Reddit’s experience powerfully demonstrates the
First Amendment risks posed by the content-moderation
restrictions and individualized-explanation requirements
of HB 20 and SB 7072. Reddit is one of the few companies
to have already been sued under HB 20. Specifically, Reddit was sued by a disgruntled user who was ejected by
other users from a subreddit community dedicated expressly to friendly discussion of the Star Trek franchise.
That experience underscores the torrent of wasteful litigation potentially awaiting Reddit and other platforms
under HB 20 and SB 7072 if this Court upholds those laws.
And the Star Trek lawsuit demonstrates the impact these
laws would likely have on the speech and associational
rights of the humans who use these platforms—not just
3
on the platforms themselves. On Reddit, the members of
each community themselves write and enforce their own
subreddit-level rules, including the rule that users must
“Be nice” when discussing Star Trek in that particular
space. Just as everyday people have a right to set the rules
(even seemingly arbitrary ones) for discussions in their
private book clubs without government control, Texas
cannot tell Redditors that they must treat all speech
“equal[ly]” in their online discussion groups. Tex. Civ.
Prac. & Rem. Code § 143A.001(1).
B. The self-governance features that distinguish the
Reddit platform—community-developed rules, volunteerled rule enforcement, and user-driven content prioritization—are all aspects of protected expression under the
First Amendment because they advance the free-speech
and free-association rights of both Reddit and its users.
Reddit’s user-driven model allows people to discuss
shared interests consistent with a shared set of values.
Redditors express themselves and define their own communities by writing and enforcing the rules that govern
each of more than 100,000 active subreddits on Reddit, as
well as by upvoting or downvoting content based on their
perception of its quality. Reddit’s model epitomizes the
First Amendment ideal of self-determination—not government regulation—for the marketplace of ideas.
HB 20 and SB 7072 threaten Reddit’s user-centric
model of expressive association. State restrictions on, for
example, “remov[ing],” “de-boost[ing],” and “deny[ing]
equal access or visibility to” particular content would strip
Reddit, its moderators, and everyday Redditors of the
very tools that they use to define their communities. Tex.
Civ. Prac. & Rem. Code § 143A.001(1). The States’ requirements for detailed, technical, and individualized explanations for moderation decisions would also place
4
intolerable burdens on the volunteer moderators who are
essential to Reddit’s platform. Texas’s and Florida’s attempts to impose those restrictions violate users’ First
Amendment rights, as well as those of Reddit itself. Reddit is intentionally designed to allow for inconsistency by
encouraging its myriad communities to distinguish and
express themselves through various forms of moderation,
while maintaining space for most across the platform. The
First Amendment does not permit Texas and Florida to
subvert Reddit’s approach to content moderation in favor
of a government-defined model for online expression.
ARGUMENT
Redditors come to the platform to exercise their fundamental “ ‘right to associate with others in pursuit of a
wide variety of political, social, economic, educational, religious, and cultural ends.’ ” Boy Scouts of Am. v. Dale, 530
U.S. 640, 647–648 (2000) (quoting Roberts v. U.S. Jaycees,
468 U.S. 609, 622 (1984)). Indeed, the Internet makes it
possible for Redditors to engage in “the most participatory form of mass speech yet developed[.]” Reno v. American Civ. Liberties Union, 521 U.S. 844, 863 (1997)
(citation omitted). And notably, users on Reddit exercise
self-determination and self-governance by “decid[ing] for
[themselves] the ideas and beliefs deserving of expression, consideration, and adherence” within their own subreddit communities. Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622, 641 (1994).
HB 20 and SB 7072 subvert that fundamental right in
the name of purportedly seeking viewpoint balance. But
this Court has repeatedly rejected the argument that
viewpoint balance justifies intrusions upon the speech and
associational rights involved in curating content. See, e.g.,
Buckley v. Valeo, 424 U.S. 1, 48–49 (1976); Miami Herald
Pub. Co. v. Tornillo, 418 U.S. 241, 260 (1974). The States
5
have violated the First Amendment by enacting laws to
dictate a homogenous, government-defined model of
expression instead of the “multifarious voices” that define
Reddit. Hurley v. Irish-Am. Gay, Lesbian & Bisexual
Grp. of Boston, 515 U.S. 557, 558 (1995).
Not only do these laws fail to comport with the Constitution’s demands; if allowed to stand, they would subvert
Reddit’s uniquely expressive approach to content moderation and prioritization. The States’ laws would continually force Reddit into court to defend the idiosyncratic,
subreddit-level rules created by individual users to organize Reddit’s multitude of communities. And those laws
would impose heavy explanatory burdens on both Reddit
and the volunteer moderators upon whom the Reddit
community and model depend. Upholding these laws
would thus serve only to further entrench the handful of
large, centralized social media platforms that already
dominate speech online and that, ironically, are the original targets of this legislation.
This Court should hold that the content-moderation
restrictions and individualized-explanation requirements
of HB 20 and SB 7072 violate the First Amendment.
A. Reddit’s experience demonstrates how HB 20 and
SB 7072 enable platforms to be sued for content
moderation that advances free-speech and freeassociation rights.
Reddit has already been sued under HB 20 over a
decision by the volunteer moderators of one of its communities to enforce that subreddit’s user-developed community rules. While that particular suit was dismissed on
procedural grounds, it underscores the flood of potential
lawsuits that are likely to arise from HB 20 and SB 7072,
as well as the laws’ chilling effects on the First
6
Amendment free-speech and free-association rights of
platforms and their users.
1. The HB 20 lawsuit against Reddit started on the
r/StarTrek subreddit. Like any other subreddit on the
Reddit platform, r/StarTrek is a community of users that
is self-organized around a shared interest: it was created
by a group of Redditors “to provide a casual, constructive,
and most importantly welcoming place on the internet to
talk about Star Trek.” 3 Like all subreddits, r/StarTrek is
primarily governed by rules written by its own members—not by Reddit. For example, with limited exceptions, anything submitted to the r/StarTrek subreddit
“must be directly about the Star Trek franchise. The
shows, movies, books, merchandise etc.”4 Posts about
other science fiction franchises (say, Star Wars) are not
allowed, nor are posts about the personal lives of actors—
even Star Trek actors. That rule keeps the discussions
within r/StarTrek on topic: People who visit r/StarTrek
want to read and talk about the Star Trek universe—not
cooking, college football, or celebrity happenings. Other
rules on r/StarTrek establish a system to prevent spoilers
so that community members do not ruin surprises from
recent episodes for others.
Most relevant here, r/StarTrek has a “Be nice” rule
that forbids “[i]nsulting or disparaging remarks about
any human being.”5 The leaders of r/StarTrek elaborate
on that rule by pointing to “Wheaton’s Law,” coined by
the actor and writer Richard William Wheaton III who
played Wesley Crusher in Star Trek: The Next Generation.
MISSION STATEMENT (emphasis added), https://www.reddit.com/r/startrek/wiki/missionstatement/ (last visited Dec. 4, 2023).
3
GUIDELINES, https://www.reddit.com/r/startrek/wiki/guidelines/ (last visited Dec. 4, 2023).
4
5
Ibid.
7
That law is, simply, “Don’t be a dick.” 6 The “Be nice” rule
is part of what shapes the viewpoint of this specific expressive association on the Reddit platform. The people
who created and oversee this particular space have chosen
to insist that the dialogue within it be polite and constructive, as opposed to other communities—including other
Star Trek related communities—that have intentionally
adopted a more anything-goes approach. 7
2. On Reddit, unlike many other platforms, users
self-organize. Each subreddit includes its own volunteer
moderators—who are not Reddit employees and who
enforce their community’s rules when other users violate
them. In 2022, the moderators of r/StarTrek determined
that a Redditor violated the “Be nice” rule when one of his
posts called Mr. Weaton’s Wesley Crusher character a
“soy boy”—a pejorative term used by internet trolls. 8 In
accordance with the r/StarTrek rules, the post was removed by a volunteer moderator empowered by the Reddit terms of use to remove any post inconsistent with
subreddit-level rules. 9 A volunteer moderator also banned
the user from r/StarTrek, but not from the Reddit website
or any other subreddits.
WHEATON’S LAW, https://knowyourmeme.com/memes/
wheatons-law (last visited Dec. 4, 2023).
6
ACTIVE STAR TREK SUBREDDITS, https://www.reddit.com/r/
DaystromInstitute/wiki/treksubs/ (last visited Dec. 4, 2023).
7
SOY BOY, https://knowyourmeme.com/memes/soy-boy (last visited Dec. 4, 2023).
8
See REDDIT USER AGREEMENT, https://www.redditinc.com/policies/user-agreement-september-25-2023 (last visited
Dec. 4, 2023); see also MODERATOR CODE OF CONDUCT,
https://www.redditinc.com/policies/moderator-code-of-conduct (last
visited Dec. 4, 2023) (incorporated by reference into the Reddit User
Agreement).
9
8
Rather than take his content to one of the dozens of
other Star Trek subreddits that lack r/StarTrek’s “Be
nice” rule, the banned user responded by suing Reddit under HB 20. He filed a petition in a Texas small claims court
claiming to have “been unlawfully censored by” Reddit,
asserting that he had been “banned and/or de-platformed
from r/StarTrek for posting a lawful opinion about a fictional character.” 10
Put in the terms of HB 20, “the viewpoint represented
in the plaintiff ’s expression” in the r/StarTrek case was
that Wesley Crusher is a “soy boy.” Tex. Civ. Prac. &
Rem. Code § 143A.002(a)(2). And that viewpoint was “censored” by the Reddit platform thanks to the “Be nice” rule
written and enforced by the r/StarTrek community. The
user therefore sought $20,000 in damages against Reddit.
He also invoked HB 20’s remedial provisions to seek declaratory and injunctive relief whereby a court would order him to be reinstated in r/StarTrek to continue hurling
insults in a forum organized with the express purpose of
fostering only good-natured conversations about Star
Trek. See id. § 143A.007(b)(2).
3. The Texas state court never reached the merits of
the r/StarTrek claim because the case was dismissed on
procedural grounds. 11 But this real-life example of HB 20
in action demonstrates how that law (and SB 7072) will
give rise to absurd results that threaten the First Amendment rights of users and platforms alike.
Since its creation in 2008, r/StarTrek has developed
into a community of over 687,000 Redditors. Those users
See Petition: Small Claims Case, Cox v. Reddit, Inc., No. S2287J1 (Just. Ct. Denton Cnty., Tex. May 17, 2022).
10
After an appearance by counsel and briefing, the case was dismissed for lack of personal jurisdiction over Reddit.
11
9
join r/StarTrek to participate in the “welcoming place”
described in the r/StarTrek mission statement. In doing
so, they agree to “Be nice,” both as a guardrail for their
own speech and as a signal of the kind of community in
which they want to participate. The injunctive relief
sought under HB 20 would have frustrated the expressive
associational rights of those 687,000 other Redditors to
participate in a community of their choosing, in accordance with rules that they collectively develop and enforce.
And HB 20 would have stopped them from exercising
their own rights to express their disagreement with the
user-plaintiff by removing him and his post to ensure that
the content curated on r/StarTrek accords with its mission statement.
The view that Wesley Crusher is a “soy boy” is undoubtedly protected by the First Amendment; the user
who made that post on Reddit would be entitled to hold a
sign with that message in a public park or to print and
distribute leaflets making that claim. But he did not have
a right to express that message in a digital space managed
and controlled by others with a different viewpoint. Texas
obviously could not force a homeowner organizing a book
club to accept this user as a member without “block[ing]”
or “ban[ning]” him, or to treat his message “equal[ly]”
with all others in the group. Tex. Civ. Prac. & Rem. Code
§ 143A.001(1); see Boy Scouts, 530 U.S. at 648. Nor could
the State force a parade organizer to accept this person’s
Wesley Crusher message in its display. See Hurley, 515
U.S. at 558. For much the same reason, the First Amendment does not permit Texas to force the Redditors who
run r/StarTrek to accept a message contrary to their rule
that Star Trek must be discussed only in a friendly way
within their space.
10
B. Government interference through laws like Texas’s
and Florida’s infringes on the speech and associational
rights of Reddit and its users.
The restraints and requirements in HB 20 and SB
7072 are fundamentally incompatible with Internet users’
freedoms of speech and expressive association, as well as
Reddit’s own First Amendment right to curate its platform through its community-driven model for content
moderation and prioritization.
1. The content-moderation restrictions in HB 20
and SB 7072 undermine Redditors’ self-governance,
their ability to define and enforce their own
content rules in their spaces, and their right to
expressive association.
HB 20 purports to prohibit “censorship” based on “the
viewpoint of the user or another person” or “the viewpoint
represented in the user’s expression or another person’s
expression.” Tex. Civ. Prac. & Rem. Code § 143A.002(a).
“Censor” is defined broadly, including “to block, ban,
remove, deplatform, demonetize, de-boost, restrict, deny
equal access or visibility to, or otherwise discriminate
against.” Id. § 143A.001(1). Attempts to obtain prior consent through terms of use are deemed impermissible
waivers and “void as unlawful and against public policy.”
Id. § 143A.003. As a result, HB 20 prohibits the very activities that underpin Reddit’s model of self-governance:
community-driven rule development, user-led enforcement, and user-determined content promotion. The same
is true of SB 7072. Both laws infringe not just Reddit’s
own First Amendment rights, but crucially, those of its
users.
a. As Reddit’s r/StarTrek case illustrates, every community on Reddit has its own set of unique rules, tailored
to its purpose and viewpoint. Reddit’s model, in which
11
most rules exist at the subreddit level, gives Redditors the
freedom to set and enforce the boundaries for what types
of speech are and are not allowed in each of the site’s more
than 100,000 active subreddits. 12
The subreddit rules, almost as much as their topics,
constitute community-organizing principles that determine who joins and how users engage. Star Trek fans
alone make up dozens of subreddits, with hundreds of collective rules across them. Many do not have a “Be nice”
rule, or at least not one as strict as that on r/StarTrek. For
example, r/StarTrekGifs advises: “this is not a cuddle puddle sub. We don’t need to be friends. But we would like all
participants to just be civil and show some common decency.”13 On r/DaystromInstitute, a subreddit founded
with the goal of “foster[ing] and encourag[ing] in-depth
discussion about Star Trek,” the primary rule is that posters “are required to explain the reasoning behind [their]
posts and comments.” 14 Heeding its own principle, the
r/DaystromInstitute Code of Conduct offers nearly 3,000
words of explanation for its fifteen rules, most of which
link out to equally thorough (and lengthy) per-rule explanations. For those who don’t want to read or follow
r/DaystromInstitute’s rules, there’s r/ShittyDaystrom,
Reddit’s site-wide Content Policy applies to all content on the
site and is enforced by Reddit employees; subreddits are free to set
community-specific rules, so long as content in their communities
complies with Reddit’s overarching site-wide rules. The decision to
manage the platform through two levels of moderation is an act of
editorial discretion by Reddit that sets it apart from many other platforms. That choice is itself protected by the First Amendment for the
reasons explained below.
12
STAR TREK GIFS, https://www.reddit.com/r/startrekgifs/ (last
visited Dec. 4, 2023).
13
CODE OF CONDUCT, https://www.reddit.com/r/DaystromInstitute/wiki/codeofconduct/ (last visited Dec. 4, 2023).
14
12
which invites what that group’s organizers describe as
“shitty discussion of everything and anything related to
the Star Trek franchise” without additional restrictions. 15
As the Star Trek ecosystem on Reddit illustrates, each
subreddit’s rules can be as strict, sparse, or absurd as its
members choose; the Reddit platform as a whole accommodates a wide range of communities and modes of discourse. Subreddit-level rules can be creative and diverse
and will naturally tend to both mirror and reinforce the
values and styles of their respective communities. Subreddits devoted to (more) serious topics, like religion, have
the same variation in rules as those about Star Trek. Some
prohibit proselytization, 16 while others permit advocacy
for beliefs so long as each post “include[s] a thesis statement and argument.” 17 Again, this community-driven approach to rulemaking ensures that Redditors can find and
participate in the discussions of their choosing and avoid
content that they find uninteresting or objectionable,
while also ensuring there is space on the platform for
anyone to find or start a new subreddit that suits their
needs and preferences.
SHITTY DAYSTROM INSTITUTE, https://www.reddit.com/
r/ShittyDaystrom/ (last visited Dec. 4, 2023).
15
See, e.g., RELIGION ON REDDIT, https://www.reddit.com/r/religion (last visited Dec. 4, 2023) (rule against proselytization); A RABBI
WALKS INTO A BAR …, https://www.reddit.com/r/judaism (last visited
Dec. 4, 2023) (same); CHRISTIANITY, https://www.reddit.com/r/christianity (last visited Dec.4, 2023) (same); ISLAM, https://www.reddit.com/r/islam (last visited Dec. 4, 2023) (same).
16
See DISCUSS AND DEBATE RELIGION, https://www.reddit.com/r/DebateReligion/ (last visited Dec. 4, 2023) (“Posts must
have a thesis statement as their title or their first sentence. … Posts
must also contain an argument supporting their thesis. An argument
is not just a claim. You should explain why you think your thesis is
true and why others should agree with you.”).
17
13
This diversity of communities and of discourse are
precisely what makes Reddit special. And those principles
of self-determination and self-governance are a core part
of the right of expressive association that the First
Amendment protects. See Boy Scouts, 530 U.S. at 647–648
(“[I]mplicit in the right to engage in activities protected
by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of political,
social, economic, educational, religious, and cultural
ends.”) (cleaned up). Users tend to become active members of a given community on Reddit because they share
the values embodied in the subreddit’s rules. A user can
and will move on to another subreddit with different rules,
or start her own subreddit with her own rules, if she feels
constricted and unable to express her viewpoint or, conversely, unprotected by the rules of a given subreddit.
b. Reddit’s system of community-led rule development could be severely stifled by the speech restraints at
issue here. SB 7072, for example, requires that online
platforms “apply censorship, deplatforming, and shadow
banning standards in a consistent manner.” Fla. Stat.
§ 501.2041(2)(b). But the whole point of Reddit is that subreddit-level rules are inconsistent. A funny meme might
be upvoted to a place of prominence on r/StarTrekGifs;
but it will be removed and might even get a user banned
from r/DaystromInstitute. 18 The First Amendment pro-
See STAR TREK GIFS, https://www.reddit.com/r/startrekgifs/
(last visited Dec. 4, 2023) (“r/startrekgifs Rules” … “This is a sub for
gifs only.”); but see DAYSTROM RESEARCH INSTITUTE,
https://www.reddit.com/r/DaystromInstitute/ (last visited Dec. 4,
2023) (“Memes, image macros, gifs, videos, greentexts, Reddit injokes, and other content of this type is not permitted in Daystrom.”).
18
14
tects Reddit’s own freedom to curate the content on its
platform in that way. 19
SB 7072’s restriction on “chang[ing] … user rules,
terms, and agreements … more than once every 30 days”
is equally inhospitable to the Reddit model. Fla. Stat.
§ 501.2041(2)(c). Rules across Reddit’s more than 100,000
subreddits change each and every day. Indeed, the power
that Reddit vests in subreddits to update their rules as the
needs of their communities evolve, and in every Redditor
to start a new subreddit based on her own rules if she feels
that her viewpoints and associational preferences are unaccommodated by existing communities, are among the
very ways by which Reddit maximizes the range of expression on the platform. Requiring consistent rules
across Reddit and restricting Redditors’ ability to change
those rules would steamroll their rights to set the idiosyncratic standards that define communities and express and
enforce their values. 20
c. In short, this Court’s precedent establishes that
every subreddit is engaged in expressive association—in
fact, each community has banded together to engage in a
public form of expression. See Boy Scouts, 530 U.S. at 648
(“The First Amendment’s protection of expressive
As then-Judge Kavanaugh has explained, the government cannot tell platforms “what content to favor” any more than it can “tell
Amazon or Politics & Prose what books to promote; or tell The Washington Post or the Drudge Report what columns to carry; or tell
ESPN or the NFL Network what games to show; or tell How Appealing or Bench Memos what articles to feature.” U.S. Telecom Ass’n v.
FCC, 855 F.3d 381, 435 (D.C. Cir. 2017) (Kavanaugh, J., dissenting
from denial of rehearing en banc).
19
That requirement would also undermine Reddit’s purpose—
like the purpose of the First Amendment itself—to “secure the widest
possible dissemination of information from diverse and antagonistic
sources.” Buckley, 424 U.S. at 48–49 (cleaned up).
20
15
association is not reserved for advocacy groups. But to
come within its ambit, a group must engage in some form
of expression, whether it be public or private.”). HB 20
and SB 7072 violate the First Amendment because, as this
Court has recognized, “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom
of expressive association if the presence of that person
affects in a significant way the group’s ability to advocate
public or private viewpoints.” Id. at 648.
2. The “censorship” restrictions in HB 20 and SB 7072
undermine the voting system on Reddit, where
individual users express themselves by upvoting
or downvoting content that they embrace or reject.
HB20 and SB 7072 would also unconstitutionally prevent Redditors from participating in how content is sorted
and displayed on Reddit. HB 20 broadly prohibits what it
calls viewpoint-based “censorship,” which includes actions to “de-boost, … deny equal access or visibility to, or
otherwise discriminate against” content that does not itself violate the First Amendment. Tex. Civ. Prac. & Rem.
Code § 143A.001(1). At the heart of content prioritization
and promotion on Reddit lies Reddit’s voting system.
Every Redditor has the power to upvote or downvote content. Consistently upvoted content will rise to the top of
the platform so that other users can see and interact with
it. 21 Conversely, downvoted content becomes less visible
across the platform. And if certain content is downvoted
enough, it will eventually be hidden entirely from the default view of the community. The downvote allows any
member of a community—not just a moderator—to reject
See generally THEORY OF REDDIT, What Does it Really Mean
to Upvote/Downvote a Post?, https://www.reddit.com/r/TheoryOfReddit/comments/1lpws2/what_does_it_really_mean_to_
upvotedownvote_a_post/ (last visited Dec. 4, 2023).
21
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transgressive behavior or low-quality content as she understands it within the mission of a given subreddit.
Reddit’s voting system thus essentially turns every
user into a content curator. That voting is anonymous and
wholly decentralized encourages broader participation.
And voting is important beyond individual posts because
accrued upvotes and downvotes feed into a user’s reputation score that Reddit calls “karma.” A user’s karma score
is a publicly visible indicator of the constructiveness (or
lack thereof, if the score is negative) of her participation
on Reddit. Many subreddit communities don’t allow posts
by users whose karma scores fall below a particular
threshold. In other words, in addition to content being prioritized or de-prioritized based on the number of upvotes
or downvotes accrued, content on Reddit may also be prioritized or de-prioritized based on the reputation of the
poster, as determined by her own community.
Often Redditors upvote or downvote content based on
the viewpoint represented in a particular post; the whole
point of upvoting and downvoting on Reddit is to identify
high-quality and low-quality content. A post expressing
the viewpoint that dogs are the best pet may well rise to
prominence on r/Dogs but would likely be downvoted or
removed from r/Cats. 22 Users’ downvotes, and Reddit’s
corresponding actions to decrease the prominence of
downvoted content, are both important parts of Redditors’ expressive freedom to keep r/Cats an enjoyable
place for cat lovers and those interested in cat care. The
Texas and Florida laws would absurdly force r/Cats to
equally feature non-cat content. Doing so would ultimately make online spaces like Reddit worse for everyone
See DOGS: WOOF, https://www.reddit.com/r/dogs (last visited
Dec. 4, 2023); but see CATS, https://www.reddit.com/r/cats/ (last visited Dec. 4, 2023).
22
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and undermine users’ expressive associational rights that
are “an indispensable means of preserving other individual liberties.” Roberts, 468 U.S. at 618.
SB 7072 similarly violates the First Amendment by
banning the use of “post-prioritization or shadow banning
algorithms” on content posted by or about a user who is
known by the platform to be a political candidate, as well
as by banning “censor[ing], deplatform[ing], or shadow
ban[ning] a journalistic enterprise based on the content of
its publication or broadcast.” Fla. Stat. § 501.2041(2)(g)
and (j). The users who operate even a subreddit like
r/NeutralPolitics would find it impossible to comply with
those prohibitions. While that forum is “dedicated to
evenhanded, empirical discussion of political issues,”
posts are still voted up and down by users so that excellent
content rises to the top and low-quality content fades into
the background. 23 Content in that forum would inevitably
include posts that are about political candidates or that
link to articles by journalistic enterprises. Yet the very
fact of upvoting or downvoting appears to fit Florida’s definition of a “shadow ban,” which includes “to limit or eliminate the exposure of a user or content or material posted
by a user to other users of the social media platform.” Fla.
Stat. § 501.2041(1)(f ).
While Texas and Florida would wrest from Redditors
the power to decide what good or bad expression is, this
Court has recognized that the First Amendment forbids
them from doing so: “No government … may affect a
‘speaker’s message’ by ‘forc[ing]’ her to ‘accommodate’
other views.” 303 Creative LLC v. Elenis, 600 U.S. 570,
596 (2023) (citation omitted); see Turner Broadcasting,
512 U.S. at 641–642; Buckley, 424 U.S. at 48–49.
NEUTRAL POLITICS: EVIDENCE. LOGIC. RESPECT,
https://www.reddit.com/r/NeutralPolitics/ (last visited Dec. 4, 2023).
23
18
3. The individualized-explanation requirements in
HB 20 and SB 7072 would create insurmountable
burdens to Reddit’s user-led model.
HB 20 and SB 7072 are unconstitutional for the additional reason that they would impose burdensome requirements on Reddit to justify every content-moderation
decision by the numerous volunteer moderators of its over
100,000 active communities. SB 7072 requires social media platforms like Reddit to provide a written rationale
within seven days of “censor[ing],” “shadow ban[ning],” or
“deplatform[ing]” a user, along with an explanation about
how the platform “became aware” of the post at issue, “including a thorough explanation of the algorithms used, if
any, to identify or flag the user’s content or material as
objectionable.” Fla. Stat. § 501.2041(2)(d)(1), (3). HB 20
includes a similar requirement, and it further requires
platforms to “allow the user to appeal the decision to remove the content to the platform.” Tex. Bus. & Com. Code
§ 120.103(a)(2). Platforms must address those appeals
within 14 days. Id. § 120.104.
NetChoice has already explained how those requirements are practically impossible to satisfy for most digital
platforms. See Brief for Respondent in No. 22-277 at 15,
39–40; Brief for Petitioners in 22-555 at 6–7, 50–53. But
those requirements are literally impossible for Reddit,
where most of more than 100,000 active subreddits have
their own sets of rules of dizzying complexity. Requiring
Reddit to provide detailed explanations for hundreds of
thousands of individual volunteer moderators’ enforcement decisions, based on the bespoke rules of their particular user-governed communities aided by tools created
by Reddit engineers, would be nonsensical and im-
19
possible. 24 And requiring Reddit’s volunteer user moderators themselves to pen “a thorough rationale” every time
a rule is enforced, as well as a “precise and thorough explanation” of how a post was surfaced to them, would be
similarly absurd and impermissibly burdensome. 25
The First Amendment protects Reddit’s viewpoint
that users should be able to govern themselves and implement their own rules for their communities. Likewise, it
protects Redditors themselves in exercising their speech
and associational choices on and through the Reddit platform. Texas and Florida may not outlaw that vibrant
model by imposing draconian administrative obligations
on it.
*
*
*
The State laws at issue here may have been intended
to target a small number of dominant “social media platforms” that engage in top-down, company-determined
content moderation. Pet. App. in No. 22-555 at 66a–67a
(quoting Tex. Bus. & Com. Code § 120.001(1)). But the
laws are so broadly written and poorly targeted that they
Although Reddit has created Automoderator tools for moderators to use, even that tooling is designed to be customized by the
moderators to the needs of each subreddit, rather than to reinforce
a single, centralized mode of discussion. See FULL AUTOMODERATOR
DOCUMENTATION, https://www.reddit.com/wiki/automoderator/fulldocumentation/#wiki_actions (last visited Dec. 4, 2023).
24
The volume of content just on Reddit alone brings into focus
the astronomical burden that Texas and Florida have sought to impose with their explanation and appeal requirements. Between January and June 2023, moderators removed 86,962,475 pieces of content
on Reddit, while Reddit employees deleted 81,725,022 pieces (78.6%
of which was spam). Taken together, that’s nearly a million moderator- or employee-led removal decisions each day. See TRANSPARENCY
REPORT: JANUARY TO JUNE 2023, https://www.redditinc.com/policies/2023-h1-transparency-report (last visited Dec. 4, 2023).
25
20
sweep in companies like Reddit, which has already been
sued under HB20. Reddit, as a collection of over 100,000
user-created and -run communities organized around
nearly as many passions, with individualized rules designed to foster those communities’ expressive association, certainly isn’t like “Verizon or AT&T.” Ibid. And
Texas’s and Florida’s attempts to outlaw Reddit’s associational rules in the name of achieving viewpoint balance
is anathema to the Constitution. As this Court has explained: “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, 424 U.S. at 48–49; see also 303
Creative LLC, 600 U.S. at 596–597.
CONCLUSION
The judgment of the Eleventh Circuit in No. 22-277
should be affirmed. The judgment of the Fifth Circuit in
No. 22-555 should be reversed.
Respectfully submitted,
Ryan T. Mrazik
Anna Mouw Thompson
PERKINS COIE LLP
1201 Third Avenue
Suite 4900
Seattle, WA 98101-3099
Benjamin S. Lee
Amalia L. Fenton
REDDIT, INC.
548 Market Street
Suite 16093
San Francisco, CA 94104-5401
December 7, 2023
Michael R. Huston
Counsel of Record
PERKINS COIE LLP
2901 North Central Avenue
Suite 2000
Phoenix, AZ 85012-2788
(202) 434-1630
mhuston@perkinscoie.com
Stephanie Duchesneau
PERKINS COIE LLP
700 Thirteenth Street N.W.,
Suite 800
Washington, D.C. 20005-3960
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.