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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Nos. 22-277, 22-555
In the Supreme Court of the United States
_________
ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA,
ET AL., PETITIONERS,
v.
NETCHOICE, LLC, DBA NETCHOICE, ET AL.,
RESPONDENTS.
__________________
NETCHOICE, LLC, DBA NETCHOICE, ET AL.,
PETITIONERS,
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
RESPONDENT.
__________________
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURTS OF APPEALS
FOR THE FIFTH AND ELEVENTH CIRCUITS
_________________
BRIEF FOR THE CENTER FOR GROWTH AND
OPPORTUNITY, ET AL. IN SUPPORT OF
RESPONDENTS IN NO. 22-277 AND
PETITIONERS IN NO. 22-555
_________________
ANDREW C. NICHOLS
Counsel of Record
Charis Lex P.C.
11921 Freedom Dr., Ste. 550
Reston, VA 20190
(571) 549-2645
anichols@charislex.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................... iii
INTEREST OF AMICI CURIAE ............................... 1
SUMMARY OF ARGUMENT.................................... 1
ARGUMENT .............................................................. 5
I.
The Constitution requires a national freespeech marketplace, which would be
clogged by a snarl of state speech codes. ............ 5
A. The First Amendment requires the
national free flow of ideas,
unburdened by state protectionism. ............. 5
B. Letting the state laws here stand will
yield 50 different speech codes, which
will overburden websites, balkanize
the country, and confuse users. .................... 8
II. A free-speech marketplace is best
fostered—and is already being fostered—
by normal market forces.................................... 11
A. As all Justices agreed six years ago,
“extreme caution” is needed before
upsetting the internet’s status quo. ........... 11
1. Caution is needed because
content-moderation decisions are
speech, even when carried out by
algorithms. ............................................ 11
2. Caution is needed because the
modern internet is new, vast, and
ever-changing. ....................................... 14
ii
B. Thanks to fierce competition among
sites, leading voices on the internet
are heterodox and conservative. ................. 16
C. Assuming that large tech firms need
government control ignores that no
one ever rules the tech sector for long. ....... 20
1. The history of large tech
companies is a history of turnover. ...... 21
2. Twitter, which the Fifth Circuit
dubbed a “monopolist,” is under
new ownership, has been
rebranded as a free-speech zone,
and faces hostile competitors. .............. 22
CONCLUSION ......................................................... 25
iii
TABLE OF AUTHORITIES
Cases
BMW of N. Am., Inc. v. Gore,
517 U.S. 559 (1996) .................................................5
Gitlow v. New York,
268 U.S. 652 (1925) .................................................5
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.
of Boston, 515 U.S. 557 (1995). .............................14
Mallory v. Norfolk S. Ry.,
143 S. Ct. 2028, 2051 (2023) ...................................7
Nat’l Inst. of Family & Life Advocates v. Becerra,
138 S. Ct. 2361 (2018) ........................... 8, 11–12, 15
Packingham v. North Carolina,
582 U.S. 98 (2017) ..................................... 14, 15, 25
R.J. Reynolds Tobacco Co. v. Cigarettes Cheaper!,
462 F.3d 690 (7th Cir. 2006) .................................22
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ...............................................11
Riley v. Nat’l Fed. of Blind of N.C., Inc.,
487 U.S. 781 (1988) ................................................8
Stromberg v. California,
283 U.S. 359 (1931) .................................................5
Timbs v. Indiana,
139 S. Ct. 682 (2019) ...............................................5
Volokh v. James,
656 F. Supp. 3d 431 (S.D.N.Y. 2023) ......................9
iv
Constitution & Statutes
U.S. Const. amend I ................... 2, 3, 5, 6, 7, 8, 10, 11,
12, 13, 14, 15
U.S. Const. amend XIV ................... 1, 2, 5, 6, 7, 11, 15
Fla. Stat. § 501.2041(1)(c) .........................................10
Fla. Stat. § 501.2041(1)(d) ........................................10
Fla. Stat. § 501.2041(2)(b) ..........................................9
Fla. Stat. § 501.2041(2)(h) ........................................10
Fla. Stat. § 501.2041(2)(j) .........................................10
Tex. Civ. Prac. & Rem. Code § 143A.002(a)(1)...........9
Other Authorities
About The Free Press, The Free Press,
https://bit.ly/3wetFec. ............................................20
Akhil Amar, The Bill of Rights
and the Fourteenth Amendment,
101 Yale L.J. 1193 (1992) ........................................6
Carmen Ang, Ranked: The World’s Most
Popular Social Networks,
and Who Owns Them,
Visual Capitalist (Dec. 6, 2021),
https://bit.ly/3XApgOv ...........................................17
Apple, Apple reveals the most popular
podcasts of 2022 (Dec. 5, 2022),
https://apple.co/3WbQMAQ ...................................18
Alexa Corse, Musk Says Twitter is Worth Less
Than Half What He Paid, Wall Street Journal
(Mar. 27, 2023).................................................22–23
v
David Curry, Social App Report (2023),
BusinessofApps (Dec. 14, 2022),
http://bit.ly/3XyV7PS .............................................16
Michael Curtis, Oliver Wendell Holmes Devise
Lecture Symposium: “Free Speech” and its
Discontents: The Rebellion Against General
Propositions and the Danger of Discretion,
31 Wake Forest L. Rev. 419 (1996) .........................5
Josh Dickey, Joe Rogan Is Talking About
Vaccines Again,
The Wrap (Apr. 13, 2022),
https://bit.ly/3XE3nxK ...........................................18
Matt Flegenheimer, Joe Rogan Is Too Big to
Cancel, N.Y. Times (July 1, 2021) ...................18–19
Gab, Website Terms of Service,
https://bit.ly/3ZKaaYw ..........................................24
Thomas Germain, Actually, Everyone Loves Censorship. Even You., GIZMODO (Feb. 22, 2023),
http://bit.ly/3Rge8pI ..............................................12
Matthew Goldstein, Trump’s Truth Social Site
Could Struggle to Survive Without New Financing,
N.Y. Times, Nov. 17, 2023 .....................................24
Jazmin Goodwin, Gab: Everything you need to
know about the fast-growing, controversial
social network, CNN (Jan. 17, 2021),
https://cnn.it/3XD25Df ..........................................24
Jay Graber, Composable Moderation,
Bluesky (Apr. 13, 2023),
https://bit.ly/3uShJ4p ............................................23
vi
Cordilia James, Tired of Twitter? Unhappy Users
Flock to Invitation-Only Bluesky, Wall Street
Journal (May 4, 2023) ...........................................23
Jemima Kelly, Journalist Bari Weiss: “I hate bullies,
period,” Financial Times (Mar. 24, 2023) .............20
Kurt Lash, The Origins of the Privileges or
Immunities Clause, Part I: “Privileges and
Immunities” as an Antebellum Term of Art,
98 Geo. L. J. 1241 (2010) .......................................18
Mark A. Lemley, The Splinternet,
70 Duke L. J. 1397 (2021) ...................................8–9
Ephrat Livni, “Shadow Banning,”
N.Y. Times (Jan. 15, 2023). ...................................22
Meta, Meta Reports Third Quarter 2023 Results
(Oct. 25, 2023), https://bit.ly/41iXOIb ...................16
Ryan Mills, Twitter Files: Platform Suppressed
Valid Information from Medical Experts
about Covid-19,
National Review (Dec. 26, 2022),
https://bit.ly/3ISV64Y ............................................20
Meera Navlakha, Turns Out Mastodon Has Way
More Active Users Than It Thought, Mashable
(Oct. 10, 2023), https://bit.ly/47MKhef .................24
Tom Parker, Rumble sets new record of 78
million monthly active users, Reclaim the Net
(Sept. 7, 2022), https://bit.ly/3ZIHXRR.................24
Miles Parks, Outrage as a Business Model:
How Ben Shapiro is Using Facebook to
Build a Business Empire,
National Public Radio (July 19, 2021),
http://bit.ly/3CY1bJP .......................................17–18
vii
Jordan B Peterson (@JordanBPeterson),
YouTube,
https://bit.ly/3XjDSC7 ...........................................19
Jon Porter, ChatGPT continues to be
one of the fastest-growing services ever,
The Verge (Nov. 6, 2023),
https://bit.ly/3NewO6S ..........................................22
Salvador Rodriguez & Meghan Bobrowsky,
Meta’s Threads Draws Power Users Seeking
Alternative to Elon Musk’s X,
Wall Street Journal, Oct. 24, 2023 .......................23
Nick Routley, The 20 Internet Giants That
Rule the Web, Visual Capitalist (Jan. 19, 2022),
https://bit.ly/2CQeaP0 .....................................21–22
Dave Rubin (@RubinReport), About, YouTube,
https://bit.ly/3ZIitnN .............................................19
Joseph Schumpeter, Capitalism, Socialism and
Democracy (3d ed. 1950) ........................................21
Semrush, October 2023 Traffic Stats (Quillette.com)
(last visited Dec. 7, 2023), https://bit.ly/46Lkjqs ..19
Todd Spangler, Joe Rogan Again Had Spotify’s No. 1
Podcast in 2023. Will He Reach a New Deal with
the Streamer?, Variety (Nov. 29, 2023),
https://bit.ly/3R3Vf80. ...........................................18
Truth Social, https://truthsocial.com/ .......................25
Tyler Valeska, Speech Balkanization,
65 B.C. L. Rev. ___ (2024) (forthcoming) ......7, 9, 10
Eugene Volokh, Mark Lemley & Peter Henderson,
Freedom of Speech and AI Output, 3 J. Free
Speech L. 653 (2023)........................................12–14
viii
Kurt Wagner and Rani Molla, Facebook’s First
15 Years Were Defined by User Growth,
Vox (Feb. 5, 2019),
http://bit.ly/3GTnvp7 .............................................16
Bari Weiss (@bariweiss), X (Dec. 6, 2023),
https://bit.ly/3sPtOHa ...........................................20
Bari Weiss, Resignation Letter,
https://bit.ly/3IVd0nJ. ...........................................19
INTEREST OF AMICI CURIAE 1
Amici curiae are The Center for Growth and Opportunity, Freedom Foundation of Minnesota, Illinois
Policy Institute, Independence Institute, James Madison Institute, Libertas Institute, Mountain States
Policy Center, Oklahoma Council of Public Affairs,
Pelican Institute for Public Policy, R Street Institute,
Rio Grande Foundation, and The John Locke Foundation. Amici are educational and research organizations committed to the faithful interpretation of the
Constitution, the rule of law, market economics, individual rights, and limited government. They write
and train the public on topics including economic
growth, innovation, and free speech. In the states
where they operate, these organizations serve as
some of the few, and at times the only, organized advocates of free-market policies and regulatory restraint. Though well-intentioned, the state laws here
flout these principles and will turn the internet into
what has aptly been called a “splinternet” of 50 state
speech codes—balkanizing the country, confusing users, overburdening websites, and impoverishing public debate. Amici file this brief to explain why such
state laws are both unconstitutional and unneeded.
SUMMARY OF ARGUMENT
I. The laws here are unconstitutional because
the Constitution mandates a national free-speech
marketplace, unburdened by state interference.
A. As shown by its text and history, a key design
of the Fourteenth Amendment was to prevent states
1 No party or counsel for a party authored this brief in whole or
in part. No one other than Amici or their counsel made a monetary contribution to fund preparation or submission of this brief.
2
from interfering with the free flow of ideas, as southern states had done with abolitionist speech before
the Civil War. Much like the Commerce Clause, the
Fourteenth Amendment (taken together with the
First Amendment) bars states from interfering with
the sovereignty of other states and thus embodies an
anti-balkanization principle. Under this Court’s
cases, states cannot, consistent with the First Amendment, choose how much to protect speech. But that is
what Texas and Florida have attempted to do.
B. The alternative—states protecting or refusing
to protect speech at will—would be 50 different speech
codes. Texas and Florida, for example, both seek
viewpoint neutrality but take different approaches.
Texas forbids censorship based on viewpoint; Florida
explicitly allows “censorship”—but requires websites
to be “consistent” in how they censor. (Florida also
immunizes some topics and speakers from moderation.) Inevitably, courts in each of these states will
diverge on how to apply these differing standards.
And the laws here go far beyond neutrality mandates.
For example, Florida imposes a slew of requirements
on websites that Texas does not. After taking all
these requirements together, websites will be left to
decide whether to leave up in Florida what must come
down in Texas, and vice versa. Meanwhile, users in
Florida and Texas who prefer a different content mix
will not simply have to move to a different website, as
they do today, but will have to move to a different
state. All this assumes, of course, that it is technologically possible for websites to vary speech protections
by state, but that task may exceed the abilities of the
most sophisticated “geofencing” services.
Now multiply these challenges across all 50
states, and one can see the confusion and division and
3
burdens imposed by Florida’s and Texas’s approach.
No such problems beset the national free-speech marketplace required by the First Amendment.
II. The laws here are unnecessary because a freespeech marketplace is best fostered—and is already
being fostered—by market forces.
A. Just six years ago, in striking down a state internet regulation, this Court warned that “extreme
caution” is needed in trying to regulate the moving
target that is the internet. Florida and Texas showed
no such caution. The Court should weigh these states’
laws carefully, lest the First Amendment be shredded
by 50 states regulating a fast-changing medium subject to fierce market forces.
Close—indeed strict—scrutiny is also required
because the laws here alter the content of the websites’ speech, rendering the laws presumptively unconstitutional. This is true even though the websites
express themselves using algorithms, which are just
instructions that apply the value judgments of real
people. Companies have First Amendment rights to
use algorithms to help them speak more effectively.
Readers have First Amendment rights to read speech
produced with help from algorithms—and to read
that speech on diverse platforms, each with its own
distinctive speech mix. These rights are encapsulated
not only in the Speech Clause, but in the Press
Clause, which guards technologies that enable speech
and serve readers. Websites using algorithms are
every bit as much the “press” today as the printing
press was in 1791.
B. Websites today compete for attention, allowing users to choose from a rich buffet of speakers—
including conservative and heterodox voices often
4
taken for granted. The largest social-media site in the
world is Facebook, with over three billion users. It is
dominated by speakers on the right. So often has Ben
Shapiro led the rankings, for example, that National
Public Radio recently declared that “Ben Shapiro
rules Facebook.” Meanwhile, over on Spotify, the top
podcast is hosted by frequent critic of the left Joe
Rogan, whose show collects 190 million downloads a
month. Other examples abound—from psychologist
and free-speech advocate Jordan Peterson (almost
670 million views on YouTube), to conservative talkshow host Dave Rubin (890 million views), to centrist
journalist Bari Weiss (one million followers on Twitter, now called “X”).
C. Nor are leading tech firms exempt from market forces. No company has ever ruled the tech sector
for long. IBM was dethroned by Microsoft. HewlettPackard was beaten by Apple. AOL was bested by
Yahoo, which was knocked off by Google. And the creative destruction continues. Since the Fifth Circuit
christened Twitter a “monopolist,” the site was sold to
a self-described free-speech absolutist. Now the overhauled and renamed company is surrounded by competitors—including Threads (10 million daily active
users), Bluesky (the eighth-ranked social-media option on Apple’s App Store), Mastodon (1.8 million
monthly active users), and Truth Social (7 million
downloads). This is not to mention other upstarts, including Gab and Rumble.
As a matter of constitutional principle and sound
policy, then, the laws here should be struck down.
The Eleventh Circuit’s judgment should be affirmed,
and the Fifth Circuit’s judgment should be reversed.
5
ARGUMENT
I. The Constitution requires a national freespeech marketplace, which would be clogged
by a snarl of state speech codes.
A. The First Amendment requires the national free flow of ideas, unburdened
by state protectionism.
1. The Constitution requires a national market
for free speech, unhindered by state interference. Of
course, the First Amendment forbids “Congress” from
“abridging the freedom of speech[.]” U.S. Const.
amend. I (emphasis added). But the Amendment’s
reach expanded with ratification of the Fourteenth
Amendment, which incorporated the First Amendment against the States. Stromberg v. California, 283
U.S. 359 (1931); Gitlow v. New York, 268 U.S. 652
(1925). Indeed, “[t]he Fourteenth Amendment was
enacted in part to prevent states from violating freedom of speech.” Michael Curtis, Oliver Wendell
Holmes Devise Lecture Symposium: “Free Speech” and
its Discontents: The Rebellion Against General Propositions and the Danger of Discretion, 31 Wake Forest
L. Rev. 419, 434 & n.86 (1996) (collecting authorities).
One can see the Fourteenth Amendment’s connection to speech rights in its prohibition on states
abridging the “privileges or immunities” of U.S. citizens. When the Amendment was ratified, “the terms
‘privileges’ and ‘immunities’ had an established
meaning as synonyms for ‘rights.’” Timbs v. Indiana,
139 S. Ct. 682, 692 (2019) (Thomas, concurring) (internal citations and quotation marks omitted); id. at
691 (Gorsuch, concurring) (collecting authorities).
“Those rights were the inalienable rights of citizens
6
that had been long recognized, and the ratifying public understood the Privileges or Immunities Clause to
protect constitutionally enumerated rights against interference by the States.” Timbs, 139 S. Ct. at 692
(Thomas, concurring) (internal citations and quotation marks omitted). Indeed, so plainly does the Fourteenth Amendment “echo[]” the First that the argument for applying the First Amendment’s protections
against the States is “wonderfully straightforward.”
Akhil Amar, The Bill of Rights and the Fourteenth
Amendment, 101 Yale L.J. 1193, 1273 (1992); see also
Kurt Lash, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an
Antebellum Term of Art, 98 Geo. L. J. 1241, 1299
(2010) (“in the period between the Founding and Reconstruction, the phrase ‘privileges and immunities of
citizens of the United States’ was consistently used as
a reference to federally conferred rights and privileges such as those listed in the Bill of Rights”).
“An ounce of history,” moreover, provides “powerful confirmation” that the Fourteenth Amendment
may soundly be read to impose the First Amendment
on the States. Amar, supra, at 1275. “From the
[1830s] on, the abolitionist crusaders had understood
that freedom of speech for all men and women went
hand in hand with freedom of bodily liberty for slaves.
The Slave Power posed a threat to Freedom—of all
kinds—and could support itself only through suppression of opposition speech, with gag rules on antislavery petitions, bans on ‘incendiary’ publications, intrusions on the right of peaceable assembly, and so on.
This global theory of Freedom was * * * quite literally
the popular platform of the antislavery movement,
perhaps best exemplified by an 1856 Republican
7
Party campaign slogan” that included the phrase
“Free Speech, Free Press, Free Men.” Id. at 1275–76.
This “global theory of Freedom” echoed through
debates leading to passage of the Fourteenth Amendment. For example, the year before the Amendment
was introduced, a Kentucky representative argued
“the Constitution will not become fully established
until the man from Massachusetts can speak out his
true opinions in the State of South Carolina, and the
man of Mississippi shall be heard without interruption in Pennsylvania.” Tyler Valeska, Speech Balkanization, 65 B.C. L. Rev. ___ (2024) (forthcoming) (quoting 9 Cong. Globe, 38th Cong., 2d Sess. 237 (1865)).
The same sentiment recurred in “speeches backing
the Amendment’s passage and decrying the interstate
censorship that had plagued the Interbellum South.”
Valeska, supra, at n.129 (quoting Alfred Avins, Incorporation of the Bill of Rights: The Crosskey-Fairman
Debates Revisited, 6 Harv. J. on Legis. 1 (1968)).
2. Given its text and history, the Fourteenth
Amendment, when taken together with the First, embodies an “anti-balkanization principle” cutting
against “state-by-state regulation that subverts or
skews interstate channels, substantially disrupting
the interstate trade in ideas.” Valeska, supra. Like
the Commerce Clause, the First Amendment, read together with the Fourteenth, “vindicates a fundamental aim of the Constitution: fostering the creation of a
national [free-speech] economy and avoiding the
every-State-for-itself practices that had weakened the
country under the Articles of Confederation.” Mallory
v. Norfolk S. Ry., 143 S. Ct. 2028, 2051 (2023) (Alito,
concurring). Under the First and Fourteenth Amendments, “one State’s power to impose burdens on * * *
interstate market[s] [in speech] * * * is not only
8
subordinate to the federal power over interstate commerce [in speech], but is also constrained by the need
to respect the interests of other States.” BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 571 (1996) (citing Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 194–196 (1824)).
Simply put, “[s]tates cannot choose the protection
that speech receives under the First Amendment, as
that would give them a powerful tool to impose ‘invidious discrimination of disfavored subjects.’” Nat’l
Inst. of Family & Life Advocates v. Becerra, 138 S. Ct.
2361, 2375 (2018) (“NIFLA”) (quoting Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 423–424, n.19
(1993)); see also Riley v. Nat’l Fed. of Blind of N.C.,
Inc., 487 U.S. 781, 796 (1988) (“[S]tate labels cannot
be dispositive of [the] degree of First Amendment protection”). “‘[T]he best test of truth is the power of the
thought to get itself accepted in the competition of the
market,’ and the people lose when the government is
the one deciding which ideas should prevail.” NIFLA,
138 S. Ct. at 2375, 2378 (holding that petitioners were
likely to succeed on their claim that state compelledspeech law violated the First Amendment) (quoting
Abrams v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting)).
B. Letting the state laws here stand will
yield 50 different speech codes, which
will overburden websites, balkanize
the country, and confuse users.
If the First Amendment cannot perform its antibalkanization function—and the laws here are left to
stand—the law governing the internet will split into
50 different conflicting regimes. The internet will become, as some commentators have warned, the “splinternet.” E.g., Mark Lemley, The Splinternet, 70 Duke
9
L. J. 1397, 1399 (2021) (“The balkanization of the internet is a bad thing, and we should stop it if we
can.”). The result will be overburdened websites, baffled users, a populace with views of reality varying by
state, and impoverished public debate.
The splintering is already underway. Compare,
for example, Texas’s and Florida’s laws. Ostensibly
the laws seek the same goals. Both require websites
to publish speech that they might prefer to take down.
But the laws take different approaches. Texas forbids
“censor[ship]” based on “viewpoint.” Tex. Civ. Prac. &
Rem. Code § 143A.002(a)(1). Effectively, then, Texas
requires content moderation to be viewpoint neutral.
By contrast, Florida allows “censorship” based on
viewpoint, but requires websites to “apply censorship,
deplatforming, and shadow banning standards in a
consistent manner[.]” Fla. Stat. § 501.2041(2)(b).
(Florida does not define “consistent.”)
What happens, then, when Texas courts predictably define viewpoint neutrality differently than Florida courts define consistency? Websites may wager
that everything on a topic—say, arguably racist
speech—must come down in Texas, but the same content may stay up in Florida. And again, these are two
states pursuing many of the same goals. What happens when states on the other side of the political divide weigh in, as they are already doing? E.g., Volokh
v. James, 656 F. Supp. 3d 431, 436 (S.D.N.Y. 2023)
(enjoining enforcement of New York law requiring
websites to facilitate the reporting of hate speech).
“Americans would ‘have to decide whether they want
to live on a red internet, or a blue one.’” Valeska, supra (quoting Casey Newton, State Tech Laws are Dividing the Internet into Blue and Red, Platformer
(Apr. 17, 2023)). And to “live” on a different internet,
10
Americans would have to move to a different state.
That would violate the rights of the minority, who enjoy a First Amendment right to hear speech without
moving states. Infra at 13–14.
Plus, neutrality is just one issue. Here are five
idiosyncrasies of Florida’s law that, so far as we know,
have no parallel in Texas’s law:
websites may deplatform candidates in the
two weeks just before an election;
entities may qualify as journalistic enterprises without publishing news;
websites may not ban otherwise-illegal material in posts by the State’s preferred
speakers or on the State’s preferred topics;
political candidates may post obscenity,
but journalistic enterprises may not; and
journalistic enterprises’ posts may not be
removed, but political candidates’ posts
may be.
Fla. Stat. § 501.2041(1)(c), (d); id. § 501.2041(2)(h), (j).
Now multiply such idiosyncrasies by 50, and one can
see the confusion and division that will be sown
among Americans if states can force websites to publish speech they would otherwise take down.
Of course, this assumes that websites can satisfy
50 different legal regimes. “Texas’s and Florida’s laws
might render platforms incapable of operation in their
current forms. The platforms have argued that creating different content moderation protocols on a stateby-state basis is technologically impossible.” Valeska,
supra. “Experts have cautioned that even if a patchwork approach to social media regulation is
11
technically possible, it would be practically infeasible.” Ibid. (citing Daphne Keller, Lawful but Awful?
Control over Legal Speech by Platforms, Governments,
and Internet Users, U. Chi. L. Rev. Online (June 28,
2022)).
***
Practical or not, Florida’s and Texas’s laws violate
the First Amendment, which, since ratification of the
Fourteenth Amendment, mandates a national freespeech marketplace. The Constitution guards against
the balkanized internet, and the balkanized populace,
that will result if Florida’s and Texas’s laws stand.
II. A free-speech marketplace is best fostered—
and is already being fostered—by normal
market forces.
Nor are Florida’s and Texas’s laws necessary. The
market can best address the concerns of the laws’ proponents, and indeed is already doing so.
A. As all Justices agreed six years ago,
“extreme caution” is needed before upsetting the internet’s status quo.
As an initial matter, great caution is needed before disturbing the internet’s status quo. This is so
for doctrinal and practical reasons.
1. Caution is needed because content-moderation decisions are
speech, even when carried out by
algorithms.
By forcing websites to publish certain content, the
state laws here “‘alter[] the content’ of [the websites’]
speech.” NIFLA, 138 S. Ct. at 2371 (quoting Riley,
487 U.S. at 795). As a matter of settled doctrine, such
12
laws “are presumptively unconstitutional and may be
justified only if the government proves that they are
narrowly tailored to serve compelling state interests.”
Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
“This stringent standard reflects the fundamental
principle that governments have no power to restrict
expression because of its message, its ideas, its subject matter, or its content.” NIFLA, 138 S. Ct. at 2371
(internal citation and quotation marks omitted).
What distinguishes one site from another is what
it publishes and refuses to publish. “[C]ontent moderation is the product.” Thomas Germain, Actually,
Everyone Loves Censorship. Even You., GIZMODO
(Feb.
22,
2023)
(emphasis
added),
http://bit.ly/3Rge8pI. And that product is expressive.
After all, a social-media site expresses its values—
and the identity of the speech community it hopes to
foster—by what it publishes. A site will therefore tailor its moderation policies to create forums that are
compelling to its users. By overriding those tailored
moderation policies, then, the laws here “‘alter[] the
content’ of [the sites’] speech.” NIFLA, 138 S. Ct. at
2371 (quoting Riley, 487 U.S. at 795). As a result, the
laws are presumptively unconstitutional.
Nor do the First Amendment clamps loosen because websites express themselves using tools called
algorithms. Algorithms are just instructions that
carry out the value judgments of real people. So too
is so-called artificial intelligence, or AI. It is just a
tool of its creator. “AI programs’ output is, indirectly,
the AI company’s attempt to produce the most reliable
answers to user queries, just as a publisher may establish a newspaper to produce the most reliable reporting on current events. * * * The analysis
shouldn’t change simply because this is done through
13
writing algorithms, selecting training data, and then
fine-tuning the models using human input rather
than hiring reporters or creating workplace procedures.” Eugene Volokh, Mark Lemley & Peter Henderson, Freedom of Speech and AI Output, 3 J. Free
Speech L. 653, 654 (2023). After all, “someone creates
AI programs, whether AI companies, universities, or
people. AI creators’ speech, like [that] of corporations
or organizations generally, is protected by the First
Amendment.” Ibid. (emphasis added).
What is more, “[t]he First Amendment protects
‘speech’ and not just speakers”; and “the Court has
long recognized First Amendment rights ‘to hear’ and
‘to receive information and ideas.’” Volokh, et al., supra, at 656, 657 & n.11 (citing, among other cases,
Kleindienst v. Mandel, 408 U.S. 753, 762–763 (1972)
(“In a variety of contexts this Court has referred to a
First Amendment right to receive information and
ideas”) (internal quotation marks omitted); Stanley v.
Georgia, 394 U.S. 557, 564 (1969) (“It is now well established that the Constitution protects the right to
receive information and ideas.”); Thomas v. Collins,
323 U.S. 516, 534 (1945) (“That there was restriction
upon Thomas’ right to speak and the rights of the
workers to hear what he had to say, there can be no
doubt.”)). “Regardless of whether any speaker interests are involved in an AI program’s output, readers
can gain at least as much from what the program communicates as they do from commercial advertising,
corporate speech, and speech by foreign propagandists—three kinds of speech that have been held to be
protected in large part because of listener interests.”
Volokh, supra, at 657 (citations omitted). Texas and
Florida have trampled on the right of their citizens to
“hear” and to “receive information and ideas”
14
published by websites, even if the websites’ owners
curated that information, and those ideas, using tools
like algorithms or AI. Id. at 656–657
And speaking of tools, in its Press Clause, “the
First Amendment protects technologies that make it
easier to speak.” Volokh, et al., supra, at 659 (emphasis added). “The ‘press’ itself refers to one such technology, the printing press, which was of course both
immensely valuable and immensely disruptive.
Since then, the Court has recognized such protection
for film, cable television, the Internet, social media,
and more. The same should apply to generative AI.”
Ibid. Just because the “press” today follows instructions written in code to show words on screens—rather than yielding to a human hand to show words on
paper—it is no less a “press” in the sense used by the
First Amendment. Ibid. Both technologies carry out
human value judgments about what speech is “worthy
of presentation.” Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Boston, 515 U.S. 557, 575 (1995).
2. Caution is needed because the
modern internet is new, vast, and
ever-changing.
Beyond these many doctrinal reasons for caution,
there are acute practical reasons—reasons that
guided this Court just six years ago in Packingham v.
North Carolina, 582 U.S. 98 (2017). There, in striking
down a state internet regulation, this Court warned:
“This case is one of the first this Court has taken to
address the relationship between the First Amendment and the modern Internet. As a result, the Court
must exercise extreme caution before suggesting that
the First Amendment provides scant protection for access to vast networks in that medium.” Id. at 105.
15
Five Justices joined that opinion, but all participating
Justices agreed that the Court “should be cautious in
applying our free speech precedents to the Internet”;
it “should proceed circumspectly, taking one step at a
time.” Id. at 118–119 (Alito, concurring).
Circumspection was especially critical, the Court
noted, because the internet is vast and still evolving.
“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.” Packingham, 582 U.S. at 105. Too, social
media are used by overwhelming majorities of Americans. Id. at 104 (citing Reno v. Am. Civil Liberties
Union, 521 U.S. 844, 868 (1997)). “Seven in ten American adults use at least one Internet social networking
service.” Packingham, 582 U.S. at 105. Courts—and
legislatures—should thus be wary of upsetting the internet’s status quo.
Caution is especially needed when the would-be
internet regulator is a state. As we have shown (at 5–
8), the Fourteenth Amendment blocks states from
curtailing free-speech rights, a problem rife in the
years before the Civil War. Again, “[s]tates cannot
choose the protection that speech receives under the
First Amendment, as that would give them a powerful
tool to impose ‘invidious discrimination of disfavored
subjects.’” NIFLA, 138 S. Ct. at 2375 (quoting Cincinnati, 507 U.S. at 423–424, n.19); Riley, 487 U.S. at 796
(“[S]tate labels cannot be dispositive of [the] degree of
First Amendment protection”).
***
In sum, everything about this case calls for caution, as it raises First Amendment concerns in every
direction. Florida and Texas showed no such caution
16
when they required that social-media sites—our most
prolific modern printing presses—publish speech that
their owners preferred to omit.
B. Thanks to fierce competition among
sites, leading voices on the internet are
heterodox and conservative.
The Court should proceed circumspectly for yet
another reason. The status quo is not perfect, but it
is good. Social-media sites today compete fiercely for
attention, allowing users to choose from a smorgasbord of speakers—including conservative and heterodox voices too often taken for granted.
Take for example Facebook, the current goliath
among social-media companies. “In 2022, Meta [Facebook’s parent] made $116 billion in revenue, more
than the combined total of every other social app.”
David Curry, Social App Report (2023), BusinessofApps (Nov. 15, 2023), http://bit.ly/3XyV7PS.
Facebook’s growth has been astonishing. In its first
year (2004), Facebook reached over a million monthly
active users. Kurt Wagner and Rani Molla, Facebook’s First 15 Years Were Defined by User Growth,
Vox (Feb. 5, 2019), http://bit.ly/3GTnvp7. In 2008, Facebook hit 100 million users. Ibid. By October 2012,
Facebook reached over a billion users. Ibid. As of October 2023, Facebook monthly users numbered 3.05
billion. Meta, Meta Reports Third Quarter 2023 Results (Oct. 25, 2023), https://bit.ly/41iXOIb. Here is a
graphic showing how Facebook and its parent, Meta,
compare in user numbers to the other top social-media players:
17
Carmen Ang, Ranked: The World’s Most Popular
Social Networks, and Who Owns Them, Visual
Capitalist (Dec. 6, 2021), https://bit.ly/3XApgOv.
When speaking of Facebook, Ben Shapiro bears
special mention. So popular has Shapiro been on Facebook that National Public Radio declared that “Ben
Shapiro rules Facebook.” Miles Parks, Outrage as a
18
Business Model: How Ben Shapiro is Using Facebook
to Build a Business Empire, National Public Radio
(July 19, 2021), http://bit.ly/3CY1bJP. “An NPR analysis of social media data found that over the past year,
stories published by the site Shapiro founded, The
Daily Wire, received more likes, shares and comments
on Facebook than any other news publisher by a wide
margin.” Ibid. “In May [2021], The Daily Wire generated more Facebook engagement on its articles than
The New York Times, The Washington Post, NBC
News and CNN combined.” Ibid. “The conservative
podcast host * * * drives an engagement machine unparalleled by anything else on the world’s biggest social networking site.” Ibid.
Facebook has company in publishing conservative
speech. Last year, Shapiro’s podcast ranked in the top
ten Apple podcasts. Apple, Apple reveals the most
popular podcasts of 2022 (Dec. 5, 2022), https://apple.co/3WbQMAQ. Likewise, Spotify just announced
that for the fourth straight year its leading podcast
was The Joe Rogan Experience. Todd Spangler, Joe
Rogan Again Had Spotify’s No. 1 Podcast in 2023., Variety (Nov. 29, 2023), https://bit.ly/3R3Vf80. Rogan,
of course, drew attention for his views on Covid vaccines and for hosting guests who took heterodox views
on the vaccines. Josh Dickey, Joe Rogan Is Talking
About Vaccines Again, The Wrap (Apr. 13, 2022),
https://bit.ly/3XE3nxK. His podcast is “effectively a
series of wandering conversations, often over whiskey
and weed, on topics including but not limited to: comedy, cage-fighting, psychedelics, and the political excesses of the left.” Matt Flegenheimer, Joe Rogan Is
Too Big to Cancel, N.Y. Times (July 1, 2021).
The size of Rogan’s audience is staggering. “In
2019, Mr. Rogan said his podcast was downloaded
19
about 190 million times in a month. Some single episodes have reached tens of millions.” Flegenheimer,
supra. So big has Rogan become that the New York
Times declared him “too big to cancel.” Ibid.
Shapiro and Rogan are not alone as heterodox
thinkers with legions of followers. Clinical psychologist, author, and free-speech advocate Jordan Peterson made his name on YouTube, where his channel
now has 7.5 million subscribers, up 25% from last
year. Jordan B Peterson (@JordanBPeterson),
YouTube, https://bit.ly/3XjDSC7. Peterson’s YouTube
videos have been watched almost 670 million times,
up over 30% from last year. Ibid. Conservative talkshow host Dave Rubin’s videos have been viewed over
890 million times. Dave Rubin (@RubinReport),
About, YouTube, https://bit.ly/3ZIitnN. The heterodox journal Quillette is visited an average of 1.6 million times per month. Semrush, October 2023 Traffic
Stats (Quillette.com) (last visited Dec. 7, 2023),
https://bit.ly/46Lkjqs.
Journalist Bari Weiss likewise is enjoying a swelling following online just a few years after evacuating
the New York Times because, in her view, the Times
was too inhospitable to centrists. Bari Weiss, Resignation Letter, https://bit.ly/3IVd0nJ. According to
Weiss, she had been hired “with the goal of bringing
in * * * first-time writers, centrists, conservatives and
others who would not naturally think of The Times as
their home. The reason for this effort was clear: The
paper’s failure to anticipate the outcome of the 2016
election meant that it didn’t have a firm grasp of the
country it covers.” Ibid. But instead of following the
truth, the paper became a progressive “performance
space” where truth was “molded to fit the needs of a
predetermined narrative.” Ibid.
20
So Weiss left and founded her own podcast and
journal, which were so successful that Weiss launched
a media firm called The Free Press. About The Free
Press, The Free Press, https://bit.ly/3wetFec. The
company has fifteen employees, and the journal has
330,000 subscribers. Jemima Kelly, Journalist Bari
Weiss: “I hate bullies, period,” Financial Times (Mar.
24, 2023), https://on.ft.com/3uq3LXm. Weiss has one
million followers on X (formerly called Twitter). @bariweiss, X (Dec. 6, 2023), https://bit.ly/3sPtOHa.
***
All these conservative and heterodox media success stories have been possible despite hostile gatekeepers in traditional media. Why? Because of the
openness, dynamism, and competitiveness of the internet. By interfering with these market forces,
Texas and Florida are disrupting the very environment that has allowed diverse voices to flourish.
C. Assuming that large tech firms need
government control ignores that no
one ever rules the tech sector for long.
Again, none of this is to deny that social-media
sites have behaved poorly—perhaps especially Twitter (again, now called X), whose excesses new owner
Elon Musk exposed in releases that some called the
Twitter Files. E.g., Ryan Mills, Twitter Files: Platform Suppressed Valid Information from Medical Experts about Covid-19, National Review (Dec. 26,
2022), https://bit.ly/3ISV64Y. Nor is it to deny that
some amici believe that investigations may be
needed, especially if websites caved to government
pressure or colluded with government officials. But
the solution is not for state governments to impose
21
their own curatorial and editorial judgments. The primary solution is the market.
1. The history of large tech companies is a history of turnover.
From the days when Microsoft overtook IBM and
Apple surpassed Hewlett-Packard, no one has ever
lasted long atop the tech sector. And since the internet exploded into public view in the 1990s, its history
has been one scene after another of what economist
Joseph Schumpeter called “creative destruction.”
Capitalism, Socialism and Democracy 84 (3d ed.
1950). AOL, Netscape, Yahoo—all enjoyed their day
in the sun but were elbowed aside by competitors offering more desirable products:
22
Nick Routley, The 20 Internet Giants That Rule the
Web,
Visual
Capitalist
(Jan.
19,
2022),
https://bit.ly/2CQeaP0.
This chart may soon be out of date, given the unprecedented rise of OpenAI and other artificial-intelligence providers.
Earlier this year, OpenAI’s
ChatGPT became “the fastest-growing consumer internet app of all time,” hitting about 100 million
monthly users in just two months—a threshold that
Facebook did not reach for over four years. Jon Porter, ChatGPT continues to be one of the fastest-growing services ever, The Verge (Nov. 6, 2023),
https://bit.ly/3NewO6S.
Sometimes the results of these power changes
please the left; other times they please the right. The
key is not to focus on who is up or down right now. It
is to note that ultimately the winners are consumers,
who “gain when firms try to ‘kill’ the competition and
take as much business as they can.” R.J. Reynolds
Tobacco Co. v. Cigarettes Cheaper!, 462 F.3d 690, 696
(7th Cir. 2006) (Easterbrook, J.). If a website’s product leaves room for competition, the market will provide that competition in short order.
2. Twitter, which the Fifth Circuit
dubbed a “monopolist,” is under
new ownership, has been rebranded as a free-speech zone,
and faces hostile competitors.
Take Twitter, for example. Since the Fifth Circuit
christened it a “monopolist” (Pet. App. 2a (No. 22555)), Twitter has changed hands—bought out by selfdescribed “free-speech absolutist” Elon Musk. Ephrat
Livni, “Shadow Banning,” N.Y. Times (Jan. 15, 2023).
The company, now called “X,” has been “reshaped so
23
rapidly” that—in the words of Musk—it “can be
thought of as an inverse startup.” Alexa Corse, Musk
Says Twitter is Worth Less Than Half What He Paid,
Wall Street Journal (Mar. 27, 2023). According to
Musk, “[r]adical changes have been necessary in part
to ensure that [X] didn’t go bankrupt.” Ibid.
X faces fierce competition for its “particular niche
of online discourse” (Pet. App. 71a (No. 22-555)),
sometimes known as microblogging. For example,
Meta’s version of X, called Threads, has “10 million
daily active users globally, including many who have
flocked to Threads * * * in search of what they describe as civil discourse.” Salvador Rodriguez & Meghan Bobrowsky, Meta’s Threads Draws Power Users
Seeking Alternative to Elon Musk’s X, Wall Street
Journal, Oct. 24, 2023. “As of * * * September [2023],
X’s market share dropped to less than 82% while
Threads has gained nearly 18% of the market.” Ibid.
Other X competitors include “decentralized” social-media offerings like Mastodon, which can be
hosted “on independent servers,” using their own
membership rules, “rather than [on servers] operated
privately by a single company, the way Meta * * *
runs Facebook and Instagram.” Cordilia James,
Tired of Twitter? Unhappy Users Flock to InvitationOnly Bluesky, Wall Street Journal (May 4, 2023). Rivals to X also include Bluesky, which lets users select
moderation services from third parties. Jay Graber,
Composable Moderation, Bluesky (Apr. 13, 2023),
https://bit.ly/3uShJ4p. Recently, Bluesky was the
eighth-ranked U.S. social-media application on Apple’s App Store; it was ranked twenty-second in the
U.S. Google Play store. James, supra. For its part,
Mastodon reportedly has 1.8 million monthly users.
Meera Navlakha, Turns Out Mastodon Has Way More
24
Active Users Than It Thought, Mashable (Oct. 10,
2023), https://bit.ly/47MKhef.
Still other networks are competing with X. Gab
is a network founded in 2016 to “defend, protect and
preserve free speech online for all people.” Jazmin
Goodwin, Gab: Everything you need to know about the
fast-growing, controversial social network, CNN (Jan.
17, 2021), https://cnn.it/3XD25Df; Gab, Website Terms
of Service, https://bit.ly/3ZKaaYw. The same is true
of Rumble, a YouTube competitor that boasts 78 million monthly global users. Tom Parker, Rumble sets
new record of 78 million monthly active users, Reclaim
the Net (Sept. 7, 2022), https://bit.ly/3ZIHXRR.
Just last year, former president Donald Trump
launched a new site called Truth Social; the application has been downloaded seven million times. Matthew Goldstein, Trump’s Truth Social Site Could
Struggle to Survive Without New Financing, N.Y.
Times, Nov. 17, 2023. By its own telling, “Truth Social is America’s ‘Big Tent’ social media platform that
encourages an open, free, and honest global conversation without discriminating on the basis of political
ideology.” See https://truthsocial.com/. Although the
site is struggling, it says it has “given millions of
Americans their voices back using technology operated at a fraction of the cost of the Big Tech platforms.” Goldstein, supra.
***
The Constitution, this Court’s precedents, today’s
robust market offerings, and constant market upheavals all counsel for “extreme caution” here—caution to protect the internet as is. Packingham, 582
U.S. at 105. In ordering private websites to publish
speech that they would otherwise refuse, Florida and
25
Texas showed no such caution. Their laws should be
overturned so that the market can continue to provide
a free nationwide flow of ideas, and the mix of speech
preferred by listeners, not governments.
CONCLUSION
The Court should affirm the Eleventh Circuit’s
judgment and reverse the Fifth Circuit’s.
Respectfully submitted.
ANDREW C. NICHOLS
Counsel of Record
Charis Lex P.C.
11921 Freedom Dr., Ste. 550
Reston, VA 20190
(571) 549-2645
anichols@charislex.com
Counsel for Amici Curiae
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.