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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What actually matters in this document.

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

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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

16

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

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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

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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.

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