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
NETCHOICE, LLC, DBA NETCHOICE, et al.,
Petitioners,
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
Respondent.
(For Continuation of Caption See Inside Cover)
On Writs of Certiorari to the United States Court
of A ppeals for the Fifth and Eleventh Circuits
BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER
FOUNDATION, NATIONAL COALITION AGAINST
CENSORSHIP, WOODHULL FREEDOM
FOUNDATION, AUTHORS ALLIANCE, FIGHT
FOR THE FUTURE, AND FIRST AMENDMENT
COALITION IN SUPPORT OF PETITIONERS
(22-555) AND RESPONDENTS (22-277)
Thomas S. Leatherbury
Thomas S. Leatherbury Law,
PLLC
Cumberland Hill School
Building
1901 North Akard Street
Dallas, TX 75201
Christopher Hopkins
McDonald Hopkins
501 South Flagler Drive,
Suite 200
West Palm Beach, FL 33401
David Greene
Counsel of Record
Elizabeth Femia
Electronic Frontier
Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333
davidg@eff.org
Attorneys for Amici Curiae
324672
A
(800) 274-3321 • (800) 359-6859
ASHLEY MOODY, ATTORNEY GENERAL
OF FLORIDA, et al.,
Petitioners,
v.
NETCHOICE, LLC, DBA NETCHOICE, et al.,
Respondents.
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv
STATEMENT OF IDENTITY AND INTEREST
OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I.
I N T E R N E T U S E R S A R E BE S T
SERV ED BY THE AVA ILA BILIT Y
OF BO T H U N MODER AT ED A N D
MODERATED SOCIAL MEDIA SITES . . . . . 3
A. M O D E R A T E D P L A T F O R M S
SERV E THE INTERESTS
OF USERS A ND THE PUBLIC
GENERALLY . . . . . . . . . . . . . . . . . . . . . . . . 3
B. EACH LAW WILL DESTROY MANY
ONLINE COMMUNITIES THAT
RELY ON CURATION . . . . . . . . . . . . . . . 13
C. CONTENT CURATION AFFECTS
ALL USERS AND INEVITABLY
FRUST R AT ES M A N Y USERS
REGA RDLESS OF POLITICA L
AFFILIATION . . . . . . . . . . . . . . . . . . . . . . 15
ii
Table of Contents
Page
D. I N PR A I S E OF T H E ( H Y P O
T H ET ICA L) U N MODER AT ED
FORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
II. T H E F I R S T A M E N D M E N T
SU PPORTS THE CO -EX ISTENCE
OF UNMODERATED AND
MODERATED FORUMS . . . . . . . . . . . . . . . . . .20
A. T H E F I R S T A M E N D M E N T
PRO T ECT S A SERV ICE’ S
R IGH T T O CU R AT E USER S ’
SPEECH THAT IT PUBLISHES
ON ITS SITE . . . . . . . . . . . . . . . . . . . . . . . . 20
B. S O CI A L M EDI A SI T E S A R E
SI M I L A R T O N E W SPA PER S ’
OPINION PAGES THAT WERE
S U B J EC T T O T H E S PEEC H
MANDATE IN TORNILLO . . . . . . . . . . . 25
C. EACH L AW ’ S RELI A NCE ON
THE SIZE OF A SITE’S USER
BA SE D OE S NO T CU R E I T S
CONSTITUTIONAL DEFECTS . . . . . . . 27
D. THE FLORIDA L AW FORCES
ONLINE SERVICES TO FAVOR
SPEECH OF POLITICA L
C A N D I D A T E S
A N D
O T H E R S O V E R E V E R Y DA Y
INTERNET USERS . . . . . . . . . . . . . . . . . 28
iii
Table of Contents
Page
E. T H E F I R S T A M E N D M E N T
PROTECTS EDITORI A L
PRIVACY AND BARS FORCED
DISCLOSURE OF EDITORIA L
REASONING . . . . . . . . . . . . . . . . . . . . . . . 30
III. I N T E R N E T U S E R S A R E BE S T
SERV ED BY VOLU N TA RY
MEA SURES FOR CONTENT
M O DE R A T ION R A T H E R T H A N
EDITORIAL MANDATES . . . . . . . . . . . . . . . . 32
IV. G O V E R M E N T S C A N L O O K T O
NON-EDITORI A L REGULATIONS
T O B E N E F I T S O C I A L M E DI A
USERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
iv
TABLE OF CITED AUTHORITIES
Page
CASES:
303 Creative LLC v. Elenis,
600 U.S. 570 (2023) . . . . . . . . . . . . . . . . . . . . . . . . 21, 24
Application of Consumers Union of U. S., Inc.,
495 F. Supp. 582 (S.D.N.Y. 1980) . . . . . . . . . . . . . 27, 30
Assocs. & Aldrich Co. v. Times Mirror Co.,
440 F.2d 133 (9th Cir. 1971) . . . . . . . . . . . . . . . . . . . . 22
Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Bursey v. United States,
466 F.2d 1059 (9th Cir. 1972) . . . . . . . . . . . . . . . . . . . 30
Elonis v. United States,
575 U.S. 723 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Florida Star v. B.J.F.,
491 U.S. 524 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Herbert v. Lando,
441 U.S. 153 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Hurley v. Irish-Am. Gay, Lesbian & Bisexual
Grp. of Boston,
515 U.S. 557 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 24, 26
In re Consumers Union of the U.S., Inc.,
32 Fed. R. Serv. 2d 1373 (S.D.N.Y. 1981) . . . . . . . . . 31
v
Cited Authorities
Page
Janus v. American Federation of State, County,
& Municipal Employees, Council 31,
138 S. Ct. 2448 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 23
La’Tiejira v. Facebook, Inc.,
272 F. Supp. 3d 981 (S.D. Tex. 2017) . . . . . . . . . . . . . 24
Langdon v. Google, Inc.,
474 F. Supp. 2d 622 (D. Del. 2007) . . . . . . . . . . . . . . . 25
Los Angeles v. Preferred Communications, Inc.,
476 U.S. 488 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Manhattan Community Access Corp. v. Halleck,
139 S. Ct. 1921 (2019) . . . . . . . . . . . . . . . . . . . . . . 22, 23
Masterpiece Cakeshop, Ltd. v. Colorado Civil
Rights Comm’n,
138 S. Ct. 1719 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 23
Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974) . . . . . . . . . . . . . . . . . . 21, 22, 23, 32
Minneapolis Star & Tribune Co. v. Minn.
Comm’r of Revenue,
460 U.S. 575 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Nat’l Inst. of Family & Life Advocates v.
Becerra,
138 S. Ct. 2361 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 23
vi
Cited Authorities
Page
NetChoice, LLC v. Atty. Gen., Fla.,
34 F.4th 1196 (11th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 9
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
O’Handley v. Padilla,
579 F. Supp. 3d 1163 (N.D. Cal. 2022) . . . . . . . . . . . . 24
O’Handley v. Weber,
62 F.4th 1145 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . . 24
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 26
PruneYard Shopping Center v. Robins,
447 U.S. 74 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Reed v. Town of Gilbert, Ariz.,
576 U.S. 155 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Reno v. Am. Civil Liberties Union,
521 U.S. 844 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Rumsfeld v. Forum for Academic
& Institutional Rights, Inc.,
547 U.S. 47 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Smith v. California,
361 U.S. 147 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
vii
Cited Authorities
Page
Twitter, Inc. v. Taamneh,
598 U.S. 471 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Alvarez,
567 U.S. 709 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Playboy Entertainment Group,
Inc.,
529 U.S. 803 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Zhang v. Baidu.com Inc.,
10 F. Supp. 3d 433 (S.D.N.Y. 2014) . . . . . . . . . . . . . . . 25
STATUTES:
Fla. Stat. § 106.072(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . 28
Fla. Stat. § 501.2041(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . 29
Fla. Stat. § 501.2041(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . . 15
Fla. Stat. § 501.2041(1)(f) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Fla. Stat. § 501.2041(1)(g) . . . . . . . . . . . . . . . . . . . . . 26, 27
Fla. Stat. § 501.2041(2)(h) . . . . . . . . . . . . . . . . . . . . . . . . 29
Fla. Stat. § 501.2041(2)(j) . . . . . . . . . . . . . . . . . . . . . . . . . 26
Tex. Bus. & Com. Code § 120.001 (1)(C)(i) . . . . . . . . . . . 27
viii
Cited Authorities
Page
Tex. Bus. & Com. Code § 143A.001 (1) . . . . . . . . . . . . . . 15
Tex. Bus. & Com. Code § 143A.002 . . . . . . . . . . . . . . . . 14
OTHER AUTHORITIES:
8chan, https://en.wikipedia.org/wiki/8chan . . . . . . . . . 19
A Note to Regulators, https://www.santaclara
principles.org/regulators/ . . . . . . . . . . . . . . . . . . . . . 33
Acceptable Use Policy, Strava . . . . . . . . . . . . . . . . . . . . . 7
Accountability Report 2.0, Internet Comm’n
(2022), Mar. 10, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Allison R. Donahue, Facebook Takes Down
Planned Parenthood Post About Medication
Abortion, Michigan Advance, Aug. 22, 2022 . . . . . . 16
Ángel Díaz and Laura Hecht-Felella, Double
St a n d a r d s i n So c i a l Me d i a C o n t e n t
Moderation, Aug. 4, 2021 . . . . . . . . . . . . . . . . . . . . . . 17
Bennett Cyphers & Cory Doctorow, The New
ACCESS Act Is a Good Start. Here’s How
to Make Sure It Delivers., EFF Deeplinks,
June 21, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Comment on Evaluating the Competitive Effects
of Corporate Acquisitions and Mergers, EFF,
August 20, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ix
Cited Authorities
Page
Community Guidelines, Peanut . . . . . . . . . . . . . . . . . . . 7
Community Guidelines, Picsart . . . . . . . . . . . . . . . . . . . 6
Community Guidelines, Pinterest . . . . . . . . . . . . . . . . . 6
Content Creators FAQs, Gettr . . . . . . . . . . . . . . . . . . . . 10
Corynne McSherry, et. al, Privacy First: A Better
Way t o Ad dress O nlin e Har m s, EFF,
Nov. 14, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Danielle Blunt et al., Posting Into The Void,
Hacking//Hustling, Oct. 2020 . . . . . . . . . . . . . . . . . . 18
Daphne Keller, Platform Transparency and the
First Amendment at 31-32, Journal of Free
Speech Law (Mar. 2023) . . . . . . . . . . . . . . . . . . . . . . . 31
Digital 2021 October Global Statshot Report,
Datareportal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Eric Goldman, Content Moderation Remedies,
28 Mich. Tech. L. Rev. 1 (2021) . . . . . . . . . . . . . . . . . 15
GodTube Community Guidelines . . . . . . . . . . . . . . . . . . 9
Hibaq Farah, Pro-Palestinian Instagram
account locked by Meta for ‘security reasons’,
The Guardian, Oct. 26, 2023 . . . . . . . . . . . . . . . . . . . 18
x
Cited Authorities
Page
Ho w C o m m u n i t i e s A r e S a f e g u a r d e d?,
HealthUnlocked . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Jack Shafer, The Op-Ed Page’s Back Pages:
A Press Scholar Explains How the New York
Times Op-Ed Page Got Star ted, Slate,
Sept. 27, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Jillian C. York, Silicon Values: The Future of
Free Speech Under Surveillance Capitalism
(Verso 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Karen Gullo & Jillian C. York, Platforms Must
Stop Unjustified Takedowns of Posts By
and About Palestinians, EFF Deeplinks,
Nov. 8, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Kit Walsh & Jillian C. York, Facebook Shouldn’t
Give Politicians More Power Than Ordinary
Users, EFF Deeplinks, Oct. 6, 2019 . . . . . . . . . . . . . 30
Meg a n Fa rok h ma ne sh, Yo uTube Is Still
Restr i c tin g an d De m o n e tizin g LGBT
Vi d e os — a n d Ad din g An ti-L GBT Ad s
to Some, The Verge, June 4, 2018 . . . . . . . . . . . . . . . 18
Megan McCluskey, These TikTok Creators
Sa y T h e y’ r e St i l l Be i n g Su p p r e s s e d
for Posting Black Lives Matter Content,
Time, Jul. 22, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
xi
Cited Authorities
Page
Michael J. Socolow, A Profitable Public Sphere:
The Creation of the New York Times Op-Ed
Page, Commc’n & Journalism Fac. Scholarship
(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Mike Masnick, Masnick’s Impossibility Theorem:
Content Moderation At Scale Is Impossible To
Do Well, Techdirt, Nov. 20, 2019 . . . . . . . . . . . . . . . . 15
Number of Monthly Active Pinterest Users
Wo rl d w i d e Fr o m 1 s t Q u a r t e r 2 016 t o
3rd Quarter 2023, Statista . . . . . . . . . . . . . . . . . . . . . . . 6
Number of Monthly Active Rumble Users
Worl dw id e From 3rd Quar ter 2020 to
2nd Quarter 2023, Statista . . . . . . . . . . . . . . . . . . . . 10
Olivia-Anne Cleary, Facebook Has Banned
Awareness Posts That Include the Words
‘Period,’ ‘Vulva’ and ‘Clitoris’ for Being
Too Sexual, Glamour, Jun. 9, 2023 . . . . . . . . . . . . . . 16
Petzbe, https://petzbe.com/ . . . . . . . . . . . . . . . . . . . . . . . . 8
Picsart, https://picsart.com/about-us . . . . . . . . . . . . . . . . 6
Platform Policies, Quora . . . . . . . . . . . . . . . . . . . . . . . . . . 5
RallyPoint, https://www.rallypoint.com/ . . . . . . . . . . . . . 8
xii
Cited Authorities
Page
Ravelry, https://www.ravelry.com . . . . . . . . . . . . . . . . . . 8
Reach Over 400 Million Monthly Unique Visitors
on Quora, Quora for Business . . . . . . . . . . . . . . . . . . . 5
Santa Clara Principles, https://www.santaclara
principles.org/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33
Strava Community Standards, Strava . . . . . . . . . . . . . . 7
Strava’s Global Community Continues Strong
Growth Surpassing 100M Registered Athletes
on the Platform, Strava . . . . . . . . . . . . . . . . . . . . . . . . 6
Taylor Wofford, Twitter Was Flagging Tweets
Including the Word “Queer” as Potentially
“Offensive Content, Mic, June 22, 2017 . . . . . . . . . . 18
Terms and Conditions, Shabbat.com . . . . . . . . . . . . . . . 9
Terms of Use, Gettr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The Rules, SmokingMeatForums.com . . . . . . . . . . . . . . 8
Trans Safety Network (@trans_safety), X, https:
// t w i t t e r. c o m / t r a n s _ s a f e t y / s t a t u s /
1642122617594212353 . . . . . . . . . . . . . . . . . . . . . . . . . 18
Vanessa Pappas, A Message to Our Black
Community, TikTok, Jun. 1, 2020 . . . . . . . . . . . . . . 17
1
STATEMENT OF IDENTITY AND INTEREST OF
AMICI CURIAE1
Amici curiae file this brief on behalf of a wide spectrum
of internet users in the United States and around the world
who rely on online publishers, including social media, to
communicate with each other and to access information
online. Each amicus is a nonprofit organization whose
constituencies represent a wide range of internet users.
Electronic Frontier Foundation has worked for more than
30 years to protect the rights of all users to transmit and
receive information online. National Coalition Against
Censorship is an alliance of more than 50 national nonprofit literary, artistic, religious, educational, professional,
labor, and civil liberties groups that are united in their
commitment to freedom of expression. 2 Woodhull
Freedom Foundation works to advance the recognition
of sexual freedom, gender equality, and is particularly
concerned with governmental attempts to censor or
compel online speech, as sexual expression is frequently
a target of such censorship efforts. Authors Alliance
advances the interests of authors who want to serve the
public good by sharing their creations broadly, often
through platforms or other forms of online distribution.
Fight for the Future is composed of artists, engineers,
1. No counsel for a party authored this brief in whole or in part,
and no such counsel or party made a monetary contribution intended
to fund the preparation or submission of this brief. No person other
than amici curiae, or their counsel, made a monetary contribution
intended to fund its preparation or submission.
2. The views presented in this brief are those of NCAC and
do not necessarily represent the views of each of its participating
organizations.
2
activists, and technologists who recognize that tech policy
issues have a disproportionate impact on communities of
color, low income people, religious minorities, political
dissidents, LGBTQ people, and others who face systemic
oppression. First Amendment Coalition is a nonprofit
organization dedicated to defending freedom of speech,
freedom of the press, and the people’s right to know.
SUMMARY OF ARGUMENT
The First Amendment right of social media publishers
to curate and edit the user speech they publish, free from
government mandates, results in a diverse array of forums
for users, with unique editorial views and community
norms. Although some internet users are understandably
frustrated and perplexed by the process of “content
moderation,” by which sites decide which users’ posts to
publish, recommend, or amplify, it’s on the whole far best
for internet users when the First Amendment protects the
sites’ rights to make those curatorial decisions. 3
This First Amendment right to be editorially diverse
does not evaporate the moment a site reaches a certain
state-determined level of popularity. But both Texas
House Bill 20 (HB 20) and Florida Senate Bill 7072 (SB
7072) take those protections away and force popular sites
to ignore their own rules and publish speech inconsistent
with their editorial vision, distorting the marketplace of
ideas.
3. As used in this brief, “content moderation” refers to the
treatment of legal speech, not its actioning of illegal speech.
3
Content moderation by online intermediaries is an
already fraught process, and government interjection of
itself into that process raises serious practical and First
Amendment concerns. Inconsistent and opaque private
content moderation is a problem for users. But it is one
best addressed through self-regulation and regulation that
doesn’t retaliate against the editorial process.
This Court should strike down the portions of each
law now before this Court.
ARGUMENT
I.
INTERNET USERS ARE BEST SERVED BY
THE AVAILABILITY OF BOTH UNMODERATED
AND MODERATED SOCIAL MEDIA SITES
Although both Florida and Texas purport to act on
behalf of internet users, their laws deprive users of the
benefits of common content moderation practices. Internet
users are best served under current law, where the First
Amendment preserves legal space for the emergence of
a continuum of content moderation, from highly curated
services to those not curated at all.
A.
MODERATED PLATFORMS SERVE THE
INTERESTS OF USERS AND THE PUBLIC
GENERALLY
The social media sites targeted by the Florida and
Texas laws are not the first online services to moderate—
or edit, or curate—the user speech they publish on their
sites. Online services, at least from their point of mass
adoption, rarely published all legal speech submitted
4
to their sites. For example, most platforms for user
speech banned legal, non-obscene sexual content, speech
that enjoys First Amendment protection. Large-scale,
outsourced content moderation emerged in the early
2000s.4
Many internet users greatly benefit from moderated
sites. Users can find or create affinity and niche communities
dedicated to certain subject matters or viewpoints and
exclude others. Users can choose environments that shield
them from certain kinds of legal speech, including hateful
rhetoric and harassment. Users can choose services that
attempt to filter out misinformation by relying on sources
the user trusts. Users typically seek sites that proactively
filter out spam content, that is, unsolicited and unwanted
online communications often distributed in bulk.
As a result of this exercise of editorial freedom,
users can choose from a variety of social media offerings,
catering to a variety of interests, many of which reflect
distinct editorial viewpoints, and exclude certain
conflicting viewpoints. See NetChoice, LLC v. Atty. Gen.,
Fla., 34 F.4th 1196, 1213 (11th Cir. 2022) (describing,
among others, Roblox, a gaming social network primarily
for young people, whose prohibitions include “any
discussion of political parties or candidates”).
The existence and popularity of these sites undercut
Florida’s and Texas’s interests in limiting the curatorial
freedom of social media sites in several ways. First, while
unmoderated forums remain available on the Internet,
4. Jillian C. York & David Greene, How to Put COVID-19
Content Moderation Into Context, Brookings’ TechStream (May
21, 2020), https://www.brookings.edu/articles/how-to-put-covid-19content-moderation-into-context/, supra n.3.
5
most social media networks have, and always have had,
community standards by which they limit the users’
speech that may be posted to their sites. Indeed, the
vast majority of social media sites, large and small, are
not designed for all legal speech, topics, or users; most
are specialized services with a particular subject matter
focus or target user demographic. Second, through their
content moderation practices, social media sites express
their own curatorial and editorial philosophies, speech
that is itself protected by the First Amendment. Third,
compliance with the Florida and Texas laws would forbid
sites from employing common editorial features and lead
to absurd results.
Quora, a site with 148 million monthly active U.S.
users, sees itself as a site where any user can ask questions
“and get answers from people who have been there and
done that” and as a “refuge from misinformation and
incendiary arguments.”5 Quora thus prohibits “posting
irrelevant answers or comments”; “targeted insults
or profanity directed at private individuals based on
personal attributes, such as physical appearance”; “hate
speech,” including “content that dehumanizes or calls for
violence, exclusion, or segregation of protected classes”
and Holocaust and Armenian Genocide denial; and
“encouraging, glorifying, or promoting” harmful activities
such as “self-harm (including eating disorders) and animal
cruelty.”6
5. Reach Over 400 Million Monthly Unique Visitors on Quora,
Quora for Business, https://business.quora.com/resources/reachover-400-million-monthly-unique-visitors-on-quora/; (last visited
Dec. 1, 2023).
6. Platform Policies, Quora, https://help.quora.com/hc/en-us/
articles/360000470706-Platform-Policies (last updated Jun. 2023).
6
Pinterest, a site with 482 million worldwide monthly
active users designed to visually inspire creative projects,
has “community guidelines” that “outline what we do
and don’t allow on Pinterest.” 7 Under these guidelines,
Pinterest reserves the right to remove several categories
of speech: “Adult content,” “Exploitation,” “Hateful
activities,” “Misinformation,” “Harassment and criticism,”
“Private information,” “Self-injury and harmful behavior,”
“Graphic violence and threats,” “ Violent actors,”
“Dangerous goods and activities,” “Harmful or deceptive
products and practices,” and “Impersonation.” Pinterest
has special rules for comments users post on other users’
“Pins,” including a ban on “Irrelevant or non-purposeful
material.”8 Picsart, another site for creators with over 150
million monthly active users, has a similar policy for its
social Spaces forums.9
Strava, a social media site for athletes with over 100
million active users,10 has Community Standards that
prohibit the posting of content that is “harassing, abusive,
7. Community Guidelines, Pinterest, https://policy.pinterest.
com/en/community-guidelines (last visited Nov. 20, 2023); Number
of Monthly Active Pinterest Users Worldwide From 1st Quarter
2016 to 3 rd Quarter 2023, Statista, https://w w w.statista.com/
statistics/463353/pinterest-global-mau/, (last visited Nov. 20, 2023).
8. Community Guidelines, Pinterest, https://policy.pinterest.
com/en/community-guidelines (last visited Nov. 20, 2023).
9. P icsa r t , https://picsa r t .com /about -us; Community
Guidelines, Picsart, https://picsart.com/community-guidelines (last
visited Nov. 20, 2023).
10. Strava’s Global Community Continues Strong Growth
Surpassing 100M Registered Athletes on the Platform, Strava,
https://blog.strava.com/press/100million/ (last visited Nov. 21, 2023).
7
or hateful, discriminatory, or that advocates violence.”11
One of Strava’s main features is for cyclists and runners
to share their routes, called “segments”; but Strava’s
Community Standards allow only “good segments” created
with “common sense.”12 The Community Standards also
require all users to be “inclusive and anti-racist.”13
Peanut, a social media site aiming to be a “safe,
inclusive space for women” navigating fertility, pregnancy,
and motherhood similarly prohibits its millions of users
from posting any content that attacks, threatens or
“otherwise dehumanizes an individual or group” based
on race, religion, age, socioeconomic status, or disability,
among other categories.14 “[M]isinformation,” “bullying,”
and “nudity, pornography, sexually explicit content or
sexual solicitation” are also barred. Peanut additionally
prohibits users from “raising money on behalf of other
individuals,” requesting “financial aid,” or promoting their
own gift “wish lists.”15
These are just a few examples. The internet is full of
specialized services with unique editorial viewpoints—
from RallyPoint, a social media site for members of the
11. Acceptable Use Policy, Strava, https://www.strava.com/
legal/terms#conduct (updated Dec. 15, 2020).
12. Strava Community Standards, Strava, https://www.strava.
com/community-standards (last visited Nov. 20, 2023).
13. Id.
14. Community Guidelines, Peanut, https://www.peanutapp.io/community-guidelines (last visited Nov. 17, 2023).
15. Id.
8
armed services,16 to Ravelry, a social media site focused on
knitting,17 to Petzbe, “social media for pets” that aims to be
“ a PAWsitive social media experience” for “pet parents.”18
Sites routinely limit their users to expressing only
certain viewpoints, covering all types of belief systems,
editorial practices the Texas law directly targets. Thus,
as the 11th Circuit below noted, “Vegan Forum allows
non-vegans but ‘will not tolerate members who promote
contrary agendas.’” See NetChoice, 34 F.4th at 1213.
Meat-eaters, though, have available to them sites like
SmokingMeatsForums.com, a “community of barbecue
and outdoor cooking enthusiasts dedicated to smoking
meat,” which more generally bans “fighting or excessive
arguing” in its user discussion forums.19 The High Road,
a firearms discussion forum, requires that all posts be
“related to firearms or ‘Right to Keep and Bear Arms’
(RKBA) issues” and explicitly prohibits users from
engaging in “discussions relating to the preparation for
possible societal breakdown” or “foreign invasion.” 20
Likewise, because their editorial choices are protected
by the First Amendment, social media sites are able to
16. RallyPoint, https://www.rallypoint.com/ (last visited Nov.
21, 2023).
17. Ravelry, https://www.ravelry.com (last visited Nov. 21,
2023).
18. Petzbe, https://petzbe.com/ (last visited Nov. 21, 2023).
19. The Rules, SmokingMeatForums.com, https://w w w.
smokingmeatforums.com/help/rules/ (last visited Nov. 20, 2023).
20. Code of Conduct, The High Road, https://www.thehighroad.
org/index.php?pages/code-of-conduct/ (last visited Nov. 20, 2023).
9
provide forums open only to certain political or religious
ideologies. As the Eleventh Circuit explained, “On the
right, ProAmericaOnly promises ‘No Censorship | No
Shadow Bans | No BS | NO LIBERALS.’ And on the
left, The Democratic Hub says that its ‘online community
is for liberals, progressives, moderates, independent[s]
and anyone who has a favorable opinion of Democrats
and/or liberal political views or is critical of Republican
ideology.’” See NetChoice, 34 F.4th at 1214. And there is
GodTube, a Christian video site, which prohibits users
from “promot[ing]” any “beliefs or teachings contrary
to those of Christianity as articulated by the historic
creeds…” 21; and Shabbat.com, “the world’s largest Jewish
social network,” which prohibits users from posting any
content that is “missionizing, Christian or otherwise.” 22
Some social media sites have special concerns for
ensuring that the information they publish is accurate,
and would be handicapped in these efforts by the Florida
and Texas laws which would force them to publish
posts regardless of their unreliability. For example,
HealthUnlocked, a social media site for health information,
requires users to agree “to share information that is true
and correct to the best of your knowledge and . . . that is
primarily drawn from your personal experience.” 23
21. GodTube Community Guidelines, GodTube, https://
www.godtube.com/terms-of-use.html (last visited Nov. 17, 2023).
22. Terms and Conditions, Shabbat.com, https://www.shabbat.
com/terms (last visited Nov. 17, 2023).
23. How Communities Are Safeguarded?, HealthUnlocked,
https: //suppor t .hea lthunlocked.com /a r ticle /11- commun ityguidelines#enforcing (last visited Nov. 20, 2023).
10
But even sites not dedicated to limited subject matter
or users have editorial policies by which they deemphasize
or decline to publish users’ posts.
Gettr, a “social media platform founded on the
principles of free speech, independent thought and
rejecting political censorship and ‘cancel culture,’” 24
reserves the right to “address” content that attacks any
religion or race, an inherently viewpoint-based criterion. 25
Rumble, a video sharing alternative to YouTube that
boasted 44 million monthly users in the second quarter of
2023, 26 prohibits both videos and comments on a number of
viewpoint-based criteria, including a bar on content that
“Promotes, supports or incites individuals and/or groups
which engage in violence or unlawful acts, including but
not limited to Antifa groups and persons affiliated with
Antifa, the KKK and white supremacist groups and or
persons affiliated with these groups.” 27
Many sites leave the moderation decisions up to
24. Content Creators FAQs, Gettr, https://gettr.com/onboarding
(last visited Nov. 20, 2023).
25. Terms of Use, Gettr, https://gettr.com/terms (last visited
Nov. 20, 2023).
26. Number of Monthly Active Rumble Users Worldwide
From 3rd Quarter 2020 to 2nd Quarter 2023, Statista, https://www.
statista.com/statistics/1347599/rumble-quarterly-mau/ (last visited
Nov. 21, 2023).
27. Website Terms and Conditions of Use and Agency
Agreement, Rumble, https://rumble.com/s/terms (last visited Nov.
20, 2023).
11
the users themselves, a practice known as “community
moderation,” with Reddit and Discord among its most
popular adopters. Reddit users manage and create
thousands of communities, called subreddits. Although
Reddit has an overriding content policy, a moderator
makes the decisions within each community as guided
by Reddit’s “Moderator Code of Conduct.” 28 Discord
employs a similar model. 29 Each site thereby empowers
some users to remove and down-rank other users’ speech
if that speech is against that community’s rules. 30 As a
result, while a political candidate and their speech may
be highlighted in one community, the candidate may be
blocked or down-ranked in another. The same is true for
any particular viewpoint.
Users readily perceive that different social media
sites have different editorial philosophies, even ones that
hold themselves out as generally open to most subject
matters and users. The evolution of what was formerly
Twitter to X under new ownership provides an ongoing
case study. Since the change, U.S. users’ views about the
character of the posts and general discourse on the site
vary dramatically by political affiliation. 31 Users who
28. Moderator Code of Conduct, Reddit, https://www.redditinc.
com/policies/moderator-code-of-conduct (effective Sep. 25, 2023).
29. Role of Administrators and Moderators on Discord,
Discord, https: //d iscord.com /sa fety/ 36 0 0 4 410 3 5 31-role - ofadministrators-and-moderators-on-discord (last visited Nov 20,
2023).
30. See, e.g., Reddiquette, Reddit, https://reddit.zendesk.com/
hc/en-us/articles/205926439-Reddiquette (last visited Nov. 20, 2023).
31. Monica Anderson, After Musk’s Takeover, Big Shifts in
12
preferred Twitter’s old editorial viewpoint appear to have
left X in large numbers, while X has undoubtedly gained
new users who are attracted to its new editorial slant and
features. 32
This Court’s statements in Twitter, Inc. v. Taamneh,
598 U.S. 471 (2023), do not undermine this truth.
In Taamneh, this Court interpreted the plaintiffs’
allegations as characterizing Facebook’s, Google’s, and
Twitter’s specific engagement with ISIS’s social media
posts as “passive.” Id. at 500; see id. at 507 (Jackson, J.
concurring) (“And the Court’s view of the facts—including
its characterizations of the social-media platforms and
algorithms at issue—properly rests on the particular
allegations in those complaints.”). And this Court was
speaking relative to the requirement of aiding and
abetting liability of “pervasive, systemic, and culpable
assistance to a series of terrorist activities.” Id. at 502.
“Passive” referred to the sites’ “arm’s-length relationship
with ISIS—which was essentially no different from
their relationship with their millions or billions of other
How Republican and Democratic Twitter Users View the Platform,
Pew Rsch. Ctr., May 1, 2023, https://w w w.pewresearch.org/
short-reads/2023/05/01/after-musks-takeover-big-shifts-in-howrepublican-and-democratic-twitter-users-view-the-platform/.
32. Matthew Loh & Dominick Reuter, Twitter Says the Huge
Swings in Follower Numbers After the Deal with Elon Musk are
Organic Account Creation and Deactivation, Business Insider,
Apr. 26, 2022, https://www.businessinsider.com/elon-musk-twitterusers-leaving-deal-to-buy-platform-2022-4; Michelle Faverio,
Majority of U.S. Twitter Users Say They’ve Taken a Break From
the Platform in the Past Year, Pew Rsch. Ctr., May 17, 2023, https://
w w w.pewresearch.org/short-reads/2023/05/17/majority-of-ustwitter-users-say-theyve-taken-a-break-from-the-platform-in-thepast-year/.
13
users.” Id. at 504. This Court did not deny that social
media sites commonly express editorial viewpoint by
intentionally boosting, deboosting, or removing other
posts or suspending or deactivating accounts.
B. E AC H L AW W I L L DE ST R OY M A N Y
ONLINE COMMUNITIES THAT RELY ON
CURATION
Each law subjects many of these common moderation
practices to onerous fines and civil actions, forcing sites
to defend their specialized moderation practices in court,
perhaps repeatedly, and chilling their exercise of editorial
discretion. This will ultimately infringe users’ rights
by distorting the marketplace of ideas, and limiting the
ability of online services to cater to particular interests,
communities, or political viewpoints, and protect users
from abuse and harassment.
The Florida law forces sites to exempt speech by
and about certain privileged users—Florida electoral
candidates and large “journalistic enterprises”—from
their policies. The law would be a major setback to efforts
to combat spam, since every action to limit the spread of
spam messages might be considered an impermissible
“shadow ban” under the law. Fla. Stat. § 501.2041(1)(f). 33
The Texas law requires sites to abandon viewpointinfused editorial policies as they became popular, requiring
them to become neutral, a result that is nonsensical and
contrary to the interests of internet users. Even the non33. SB 7072 definition of “social media platforms” does not
exclude email services or limit the covered services to social media
posts. § 501.2041(1)(f).
14
niche sites that publish diverse content and views will
be hesitant to remove any unwanted legal speech from
their sites, for fear that their decisions might be judged
to be based on a viewpoint the user or any other person
expressed on or off the site. See Tex. Bus. & Com. Code
§ 143A.002. This unwanted speech might include nonthreatening violent content; false but non-harmful or nondefamatory content; or any content that is irrelevant to the
site’s purpose or contrary to its values, but is nevertheless
protected by the First Amendment. 34 Or they might choose
to avoid publishing all controversial content, a move that
would result in their users seeing less speech on the sites,
not more.
Each law also substantially hinders community
moderation.
Although each law applies only to very popular services,
its prohibitions will affect the editorial polices of services
of all sizes, and cause a radical revision of a site’s editorial
policy as it approaches a state’s arbitrary size threshold,
thus defeating the expectation of its users and investors.
Every service starts small, but many grow rapidly, and
almost all hope to grow rapidly: TikTok needed only five
years to surpass 1 billion monthly active users.35 Every
34. See, e.g., Reno v. Am. Civil Liberties Union, 521 U.S. 844,
874 (1997) (non-obscene but indecent sexual content is protected by
First Amendment); Elonis v. United States, 575 U.S. 723, 740 (2015)
(certain threatening speech is protected by First Amendment);
United States v. Alvarez, 567 U.S. 709, 723 (2012) (certain nonharmful false speech is protected by First Amendment).
35. See Digital 2021 October Global Statshot Repor t,
Datareportal, Oct. 21, 2021, https://datareportal.com/reports/digital2021-october-global-statshot.
15
online service must account for such growth at its earliest
stages.
C.
CONTENT CURATION A FFECTS A LL
USERS AND INEVITABLY FRUSTRATES
M A N Y USERS REGA RDLESS OF
POLITICAL AFFILIATION
In all of these sites, editing and curation occurs:
some user speech is rejected, hidden, labeled, or
otherwise moderated. 36 Users may believe that a site is
not adequately recommending their posts to other users
or otherwise spotlighting their posts or their account as
the user thinks appropriate. 37 And it is often frustrating,
angering, or perplexing to users.
This may occur because the user speech clearly strayed
from the site’s rules. Or it may have been a close editorial
call about which reasonable minds could differ. Or it may
just be a mistake. Or it may be the user’s misperception.
As is often said, content moderation at scale is
impossible to do perfectly, and nearly impossible to do
well. 38 Even when using a set of precise rules or carefully
36. Eric Goldman, Content Moderation Remedies, 28 Mich.
Tech. L. Rev. 1 (2021).
37. This is reflected in each state’s law. The Texas law says
platforms cannot “deny equal access or visibility to, or otherwise
discriminate against expression.” Tex. Bus. & Com. Code § 143A.001
(1). The Florida law prohibits placing “certain content or material
ahead of, below, or in a more or less prominent position than others in
a newsfeed, a feed, a view or search results.” Fla. Stat. § 501.2041(1)(e).
38. See, e.g., Mike Masnick, Masnick’s Impossibility Theorem:
Content Moderation At Scale Is Impossible To Do Well, Techdirt, Nov.
20, 2019, https://www.techdirt.com/articles/20191111/23032743367/
16
articulated “community standards,” moderated sites often
struggle to distinguish between speech that is and is not
permitted. Every online forum for user speech, not just the
dominant social media sites, grapples with this problem.
This is not a new problem, dating to at least 2007. 39
And likely every social media user experiences it as either
a creator or audience. Nor is it limited to U.S. conservative
speakers, which was the premise of both the Florida and
Texas laws.
In 2022, Facebook restricted a post from Planned
Parenthood of Michigan that shared an article regarding
the legal availability of abortion pills online so that it was
visible to only the administrators of the group to which
it was posted.40 Facebook claimed this was a mistake,
and affirmed that discussions about the affordability and
availability of pharmaceuticals were permitted, though
“content that attempts to buy, sell, trade, gift, request
or donate pharmaceuticals is not allowed.”41 Facebook
also recently faced renewed criticism over the negative
moderation of posts containing words pertinent to
feminine hygiene, including “vulva” and “endometriosis.”42
masnicks-impossibility-theorem-content-moderation-scale-isimpossible-to-do-well.shtml.
39. Jillian C. York, Silicon Values: The Future of Free Speech
Under Surveillance Capitalism 25-27 (Verso 2021).
40. Allison R. Donahue, Facebook Takes Down Planned
Parenthood Post About Medication Abortion, Michigan Advance,
Aug. 22, 2022, https://michiganadvance.com/blog/facebook-takesdown-planned-parenthood-post-about-medication-abortion/.
41. Id.
42. Olivia-Anne Cleary, Facebook Has Banned Awareness Posts
That Include the Words ‘Period,’ ‘Vulva’ and ‘Clitoris’ for Being Too
17
Indeed, marginalized communities are particularly
vulnerable.
Black creators have documented how their Black
Lives Matter content was suppressed on TikTok; TikTok
apologized and blamed it on a bug. But incidents persisted
even after.43
A 2021 report documented that the viewpoints of
communities of color, women, LGBTQ+ persons, and
religious minorities are subject to over-enforcement
of social media community standards, with their posts
subject more frequently to mass takedowns as compared to
more subtle forms of content moderation, such as warning
labels and temporary demonetization, more commonly
applied to the viewpoints of dominant communities, a
trend that motivates amicus Fight for the Future’s work
in this area.44
In 2023, the Trans Safety Network reported finding
that the words “trans,” “queer,” “lesbian” and “bisexual”
were downranked on X and not shown in direct message
Sexual, Glamour, Jun. 9, 2023, https://www.glamourmagazine.co.uk/
article/facebook-bans-bodyform-posts-with-words-period-vulvaclitoris.
43. Megan McCluskey, These TikTok Creators Say They’re
Still Being Suppressed for Posting Black Lives Matter Content,
Time, Jul. 22, 2020, https://time.com/5863350/tiktok-black-creators/;
Vanessa Pappas, A Message to Our Black Community, TikTok, Jun.
1, 2020, https://newsroom.tiktok.com/en-us/a-message-to-our-blackcommunity.
44. Ángel Díaz and Laura Hecht-Felella, Double Standards
in Social Media Content Moderation, Aug. 4, 2021, https://www.
brennancenter.org/our-work/research-reports/double-standardssocial-media-content-moderation.
18
previews. 45 This finding recalls previous incidents
when users discovered that Twitter had marked tweets
containing the word “queer” as offensive46 and YouTube
was accused of restricting and demonetizing LGBTQ+
content.47
Sex worker advocates have documented how they are
routinely shadowbanned across a variety of social media
sites.48
Palestinian rights advocates have complained of unfair
and biased content moderation against their views before
and during the current Israel-Gaza conflict, including
the removal of the Palestinian flag emoji and locking the
Let’s Talk Palestine and eye.on.palestine accounts from
Instagram for security reasons.49
45. Trans Safety Network (@trans_safety), X (Apr. 1, 2023, 4:11
AM), https://twitter.com/trans_safety/status/1642122617594212353.
46. Taylor Wofford, Twitter Was Flagging Tweets Including
the Word “Queer” as Potentially “Offensive Content, Mic, June 22,
2017, https://www.mic.com/articles/180601/twitter-was-flaggingtweets-including-the-word-queer-as-potentially-offensive-content.
47. Megan Farokhmanesh, YouTube Is Still Restricting
and Demonetizing LGBT Videos— and Adding Anti-LGBT
Ads to Some, The Verge, June 4, 2018, https://www.theverge.
com/2018/6/4/17424472/youtube-lgbt-domentization-ads-alogrithm.
48. See Danielle Blunt et al., Posting Into The Void, Hacking//
Hustling, Oct. 2020, https://hackinghustling.org/wp-content/
uploads/2020/09/Posting-Into-the-Void.pdf.
49. Hibaq Farah, Pro-Palestinian Instagram account locked
by Meta for ‘security reasons’, The Guardian, Oct. 26, 2023, https://
www.theguardian.com/technology/2023/oct/26/pro-palestinianinstagram-account-locked-by-meta-for-security-reasons; Karen
Gullo & Jillian C. York, Platforms Must Stop Unjustified Takedowns
19
D.
IN PRAISE OF THE (HYPOTHETICAL)
UNMODERATED FORUM
Any regulatory system must also leave open the
possibility of unmoderated sites, where all legal user
speech is permitted and the operator plays no role in
selecting protected content or ordering its presentation.
Large unmoderated social media sites are at present
highly rare. Forums that pride themselves on doing little
or no moderation have not attracted nearly as many users
as forums that weed out hate speech, spam, and other
disruptive content.
But purely unmoderated forums, even if unpopular,
would benefit internet users and the public generally by
eliminating centralized editors, inhibiting the creation of
silos, and allowing users to engage in free-form discussions
and debates of their choosing, and find unexpected
sources of ideas and information. Users’ communications
would not need to be actively screened, and users need
not fear that they may accidentally run afoul of content
rules. Unmoderated forums can be of special value to
political dissidents and others who may be targeted for
censorship by governments and private actors exploiting
vagaries in community standards. They would provide an
accessible forum for speech that is unpopular, disfavored,
or inadvertently suppressed.
Unfortunately, there are not any large-scale positive
models of unmoderated forums. 8kun, 50 formerly 8chan, is
of Posts By and About Palestinians, EFF Deeplinks, Nov. 8,
2023, https://www.eff.org/deeplinks/2023/11/platforms-must-stopunjustified-takedowns-posts-and-about-palestinians.
50. 8chan, https://en.wikipedia.org/wiki/8chan (last visited
Nov. 27, 2023).
20
probably the most well-known example and it is notoriously
rife with hateful speech.
Nevertheless, regulatory regimes must provide for the
possibility of positive models. The Florida law, for its part,
would not produce unmoderated forums. Instead, it would
create sites where speech by and about Florida political
candidates is less moderated than other posts, even when
they address the same issues. The resulting asymmetry—
political candidates get to always speak, even if they
violate a site’s rules; other users who are not candidates
do not—denies users the benefits of unmoderated forums.
II. THE FIRST AMENDMENT SUPPORTS THE
CO-EXISTENCE OF UNMODERATED AND
MODERATED FORUMS
The First Amendment supports the existence of online
forums all along the moderation continuum: it protects
sites’ publication of all legal user speech and shields them
from being forced to publish any content that they would
otherwise choose not to publish. Both the Florida and
Texas laws upset this careful balance.
A.
THE FIRST AMENDMENT PROTECTS A
SERVICE’S RIGHT TO CURATE USERS’
SPEECH THAT IT PUBLISHES ON ITS SITE
The First Amendment protects the rights of social
media services to publish both user speech and their own
speech, regardless of whether they curate it a lot, a little,
or not at all (and everything in between). Other than the
Fifth Circuit below, every court that has considered the
issue has rightfully found that private entities that operate
21
online forums for user speech enjoy a First Amendment
right to curate that speech.
Just last term this Court reaffirmed that the state
cannot force an online intermediary, in that case a web
designer, “to accommodate other views,” or otherwise
“alter the expressive content of her message,” or
“interfere with her desired message.” 303 Creative LLC v.
Elenis, 600 U.S. 570, 596 (2023) (internal quotation marks
and citations omitted). This Court distinguished cases
like Rumsfeld v. Forum for Academic & Institutional
Rights, Inc., 547 U.S. 47, 51-52 (2006) (“FAIR”), which
involved only incidental burdens on speech, not direct
infringements on inherently “expressive services.” 303
Creative, 600 U.S. at 596-97. 51
A social media site’s decision whether and how to
publish and recommend user posts, like the web site
creation in 303 Creative, is inherently expressive and
thus deserving of First Amendment protection against
compelled speech.
The rule against compelled speech affirmed in 303
Creative is well-established First Amendment law,
applicable in a variety of contexts. This Court has long
held that private publishers have a First Amendment
right to control both the internally and externally
created content of their publications. See Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241, 254-55 (1974);
51. FAIR relied in part on this Court’s prior holding in
PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), which
also dealt only with an incidental burden on expression, and is thus
similarly inapposite to the present cases. See FAIR, 547 U.S. at 65.
22
Cf. Manhattan Community Access Corp. v. Halleck,
587 U.S.
, 139 S. Ct. 1921, 1930 (2019) (reaffirming
that “when a private entity provides a forum for speech,”
it can “exercise editorial discretion over the speech
and speakers in the forum”); see also Los Angeles v.
Preferred Communications, Inc., 476 U.S. 488, 494 (1986)
(recognizing cable television providers’ First Amendment
right to “exercis[e] editorial discretion over which stations
or programs to include in its repertoire”). This intrusion
into the curatorial process is unconstitutional even if the
compelled publication would not add costs or force the
omission of desired content. Tornillo, 418 U.S. at 258.
The parallels between Tornillo and the present cases
are strong.
In Tornillo, the law required newspapers that
endorsed an electoral candidate to publish responses
from the candidate’s opponents. Id. at 243-45. The law
was justified as necessary because print news media both
dominated and manipulated public discourse, citing a
“concentration of control of outlets to inform the public”
that had become “enormously powerful” in its capacity to
“manipulate popular opinion.” Id. at 248-49.
The Tornillo Court did not dispute the validity of
these concerns, but nevertheless found that governmental
interference with editorial discretion was so anathema to the
First Amendment that the remedy for these concerns must
be found through “mechanism[s]” that are “consensual,” not
“governmental.” Id. at 254; see also Assocs. & Aldrich Co. v.
Times Mirror Co., 440 F.2d 133, 134 (9th Cir. 1971) (rejecting
argument that the Los Angeles Times’ “semimonopoly
and quasi-public position” justified order compelling
the newspaper to publish certain advertisements). This
23
Court rejected the argument that “the government has an
obligation to ensure that a wide variety of views reach the
public.” Tornillo, 418 U.S. at 247-48.
Tornillo set out a general principle of editorial and
curatorial freedom, not a special rule for newspapers. 52
This Court consistently applies Tornillo in a variety of
speech contexts, including thrice in this Court’s 2018
term, see Janus v. American Federation of State,
County, & Municipal Employees, Council 31, 585 U.S.
, 138 S. Ct. 2448, 2463 (2018); Nat’l Inst. of Family &
Life Advocates v. Becerra, 585 U.S.
, 138 S. Ct. 2361,
2371 (2018); Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Comm’n, 584 U.S.
, 138 S. Ct. 1719, 1745
(2018) (Thomas, J., concurring), again in 2019, Manhattan
Community Access, 139 S. Ct. at 1928, and, as noted, last
term in 303 Creative, 600 U.S. at 596.
Nor is Tornillo limited to publishers that primarily
publish their own speech. It applies to any entity that
speaks by curating and publishing the speech of others.
This Court previously applied Tornillo in holding that the
organizers of a parade had a First Amendment right to
curate the participants, and thus could not be required
to include a certain message in the parade, even if it was
52. Nevertheless, the Florida law defines “social media
platform” to include some newspapers: “any information service”
that has either $100 million in annual revenue or 100 million monthly
“platform participants.” Fla. Stat § 501.2041(1)(g). The New York
Times, for example, had an average of 145 million monthly visitors
to its interactive website nytimes.com in 2022 and The New York
Times Company (NYSE:NYT) had 2.3 billion dollars in annual
revenue. See The New York Times Company 2022 Annual Report
at 4, 29, Mar. 10, 2023, https://nytco-assets.nytimes.com/2023/03/
The-New-York-Times-Company-2022-Annual-Report.pdf.
24
perceived as generally open for public participation, and
such selectivity was not generally evident in the past.
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
Boston, 515 U.S. 557, 569–70 (1995). As the Hurley Court
explained, “a private speaker does not forfeit constitutional
protection simply by combining multifarious voices, or by
failing to edit their themes to isolate an exact message
as the exclusive subject matter of the speech. Nor, under
our precedent, does First Amendment protection require
a speaker to generate, as an original matter, each item
featured in the communication.” Id.
Importantly, the web designer in 303 Creative was
acting, in large part, as an intermediary of others’
speech—in that case, her potential same-sex-to-bemarried clients. The contemplated websites would tell
the story and details of the couples’ weddings, and
also express the designer’s “message celebrating and
promoting her view of marriage.” 303 Creative, 600 U.S.
at 582 (internal quotation marks omitted). A viewer of
that website may well associate the site with the couple
themselves since it would convey the couple’s “details of
their unique love story,” a discussion of how the couple met,
their backgrounds, families, future plans, and information
about the upcoming wedding; but 303 Creative would also
be identified as the creator of the website somewhere on
each website. 303 Creative, 600 U.S. at 579.
Numerous courts have thus correctly applied Tornillo
to social media sites that primarily, if not exclusively,
publish user-generated content. 53
53. See, e.g., O’Handley v. Padilla, 579 F. Supp. 3d 1163,
1186-87 (N.D. Cal. 2022), aff’d sub nom., O’Handley v. Weber,
62 F.4th 1145 (9th Cir. 2023); La’Tiejira v. Facebook, Inc., 272 F.
Supp. 3d 981, 991 (S.D. Tex. 2017); Zhang v. Baidu.com Inc., 10
25
B. SOCIAL MEDIA SITES ARE SIMILAR
T O N EWSPA PER S’ OPI N ION PAGE S
THAT WERE SUBJECT TO THE SPEECH
MANDATE IN TORNILLO
Although Tornillo applies well beyond newspapers
to any exercise of editorial or curatorial discretion, it
is helpful to understand the similarities between social
media sites and the op-ed pages of a newspaper, the
specific forum targeted by the Florida law in Tornillo.
Like social media sites, op-ed pages typically
publish content created by others: opinion pieces by
outside contributors, letters to the editor, syndicated
editorial cartoons, as well as the syndicated and wire
service articles and advertisements also found elsewhere
throughout the typical newspaper. 54 Indeed, much of the
typical newspaper is a mix of original writing and content
created by others, including also wedding, engagement,
and birth announcements, and comics.
Indeed, perhaps the most powerful pronouncement
F. Supp. 3d 433, 436-37 (S.D.N.Y. 2014); Langdon v. Google, Inc.,
474 F. Supp. 2d 622, 629-30 (D. Del. 2007).
54. See Jack Shafer, The Op-Ed Page’s Back Pages: A Press
Scholar Explains How the New York Times Op-Ed Page Got Started,
Slate, Sept. 27, 2010, https://slate.com/news-and-politics/2010/09/apress-scholar-explains-how-the-new-york-times-op-ed-page-gotstarted.html; Michael J. Socolow, A Profitable Public Sphere: The
Creation of the New York Times Op-Ed Page, Commc’n & Journalism
Fac. Scholarship (2010), https://digitalcommons.library.umaine.edu/
cgi/viewcontent.cgi?referer=&httpsredir=1&article=1001&conte
xt=cmj_facpub; Op-Ed, Wikipedia, https://en.wikipedia.org/wiki/
Op-ed (last visited Nov. 27, 2023).
26
of freedom of the press in Supreme Court jurisprudence,
New York Times Co. v. Sullivan, 376 U.S. 254 (1964),
centered on The Times’ role as an intermediary for the
unsolicited speech of others, a paid advertisement: as the
Court explained, newspapers are “an important outlet for
the promulgation of information and ideas by persons who
do not themselves have access to publishing facilities—
who wish to exercise their freedom of speech even though
they are not members of the press.” Id. at 266. 55 More
recently, the Court recognized that social media sites
now play that very role by providing “perhaps the most
powerful mechanisms available to a private citizen to make
his or her voice heard.” Packingham v. North Carolina,
582 U.S. 98, 107 (2017).
Tornillo applies regardless of how selectively the
speaker curates. 56 Selectivity is not an on-off switch: for
both online and offline media, selectivity exists along
a continuum. 57 The First Amendment shields speakers
55. The Sullivan Court also bolstered its actual malice rule by
reference to earlier cases dealing with another type of intermediary,
booksellers. Id. at 278-79 (citing Smith v. California, 361 U.S. 147
(1959); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)).
56. As discussed above, the major social media sites have
actively curated the user content on their sites since at least 2007.
The Internet users represented by amicus curiae Woodhull Freedom
Foundation understand that the perception of such services as
“unmoderated” typically disregards the very active removal and
moderation of constitutionally protected sexual expression.
57. The Florida law makes no distinction between those
services that select certain third-party content and those that are
completely non-selective. See Fla Stat. § 501.2041(1)(g). The Texas
law focuses on when selection occurs, not how selective the publisher
is. See Tex. Bus. & Com. Code § 120.001(1)(C)(i) (emphasis added).
27
that combine their own speech with selective or nonselective fora for the speech of others. See, e.g., Hurley,
515 U.S. at 569-70. Indeed, news media is replete with
historic examples of publications primarily intended to
non-selectively transmit others’ speech. Pennysavers, for
example, local newspapers either entirely or primarily
composed of classified advertisements, coupons, life
milestone announcements, congratulatory messages,
recipes, and public notices have a storied history. 58 The
curators, theater directors, and booksellers, whose
artistic freedom amicus curiae National Coalition Against
Censorship defends, curate art and select plays and books
along a similar continuum. Their First Amendment rights
do not depend upon their falling on the proper side of some
selectivity line.
C.
EACH LAW’S RELIANCE ON THE SIZE OF
A SITE’S USER BASE DOES NOT CURE ITS
CONSTITUTIONAL DEFECTS
Each law’s limited application to sites with large user
bases59 only exacerbates its constitutional defects. This
Court applies strict scrutiny to laws that restrict the
speech of speakers based on the size of their audiences.
See Minneapolis Star & Tribune Co. v. Minn. Comm’r
of Revenue, 460 U.S. 575, 585 (1983) (striking down a law
that applied only after $100,000 of ink and paper were
58. Pennysaver, https://www.pennysaverusa.com/ (last visited
Nov. 27, 2023).
59. Florida’s law applies to sites with over 100 million monthly
individual users globally or to sites with gross revenues over $100
million annually. Fla. Stat. § 501.2041(1)(g). But revenues are also
at least in part a measure of user base.
28
consumed in a year). “Where important First Amendment
interests are at stake, the mass scope of disclosure is
not an acceptable surrogate for injury.” Florida Star
v. B.J.F., 491 U.S. 524, 540 (1989) (striking down a law
that prohibited publication by an “instrument of mass
communication” but not smaller publishers).
D.
THE FLORIDA LAW FORCES ONLINE
S ERV IC E S T O FAVO R S PE E C H OF
POLITICAL CANDIDATES AND OTHERS
OVER EVERYDAY INTERNET USERS
The Florida law also violates the First Amendment
and treats users unfairly by mandating favoritism for
certain speakers’ online content. The law demands
that online services treat the posts of Florida political
candidates and highly popular “journalistic enterprises”
more favorably than average internet users’ posts, while
at the same time impossibly requiring that all content
moderation decisions be “consistent.”
The law privileges the online speech of political
candidates for public office in a variety of ways. Fla. Stat.
§ 106.072(1)(a). The statute limits how online services
treat posts by political candidates on their sites before
an election, even if a candidate repeatedly violates the
service’s policies or the law, or even if they are simply
outside of the site’s subject matter focus. Fla. Stat. §
106.072(2). Users who are not running for office, on the
other hand, enjoy no similar privilege to disregard the
site’s rules. It prevents sites from using algorithms to
curate, arrange, or present “content and material posted
by or about” a political candidate, even if users would
otherwise choose algorithmic recommendations. Fla. Stat.
§ 501.2041(2)(h).
29
The law provides similar privileges for another
category of speakers: those that meet the statute’s
sharply underinclusive and overinclusive definition of a
“journalistic enterprise.” The law wisely avoids defining
what journalism is but instead uses a popularity metric,
with thresholds for various forms of media. Fla. Stat. §
501.2041(1)(d). The law places restrictions on a site’s ability
to curate those entities’ posts or accounts if they violate
the site’s policies. The law also prevents online services
from “post[ing] an addendum to” any posts from such
“journalistic enterprises,” Fla. Stat. § 501.2041(2)(j), even
though such counter-speech measures are often presented
as valuable options to taking down problematic posts.
Florida’s decision to favor larger and powerful users
is no more defensible than its decision to disfavor larger
and powerful sites. These are speaker-based and contentbased distinctions that subject the laws to strict scrutiny.
Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 170 (2015);
United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803, 812 (2000). SB 7072 fails strict scrutiny
because, among other reasons, it is fatally underinclusive,
and “raises serious doubts about whether Florida is, in
fact, serving, with this statute the significant interests”
lawmakers claim. The Florida Star v. B.J.F., 491 U.S.
524, 540 (1989). Indeed, SB 7072 is akin to the Florida
law found constitutionally underinclusive by this Court in
Florida Star. See id. That law criminalized the disclosure
of sexual assault victims’ names by an “instrument of
mass communication,” but not by any other speaker whose
disclosures could result in equal or greater harm. Id.
SB 7072’s requirements that sites privilege political
candidates’ speech over other users’ speech reinforces
existing discrepancies in power, resources, and the
30
ability to disseminate speech that political candidates
already enjoy over the general public.60 For example,
SB 7072 would force Facebook to revert to its widely
criticized previous policy whereby it exempted certain
politicians’ posts from its fact-checking and hate speech
rules, resulting in it publishing speech that it may have
otherwise deleted, including hate speech, demonstrable
falsity, and personal harassment.61
E. THE FIRST AMENDMENT PROTECTS
EDITORIAL PRIVACY AND BARS FORCED
DISCLOSURE OF EDITORIAL REASONING
Each law’s requirement that users be notified of and
given an explanation of the reason for a site’s curatorial
decision also violates the First Amendment.
Editorial freedom includes not only the right to devise
and implement an editorial policy, but also protections for
privacy in doing so. See Bursey v. United States, 466 F.2d
1059 (9th Cir. 1972) (overturning on First Amendment
grounds grand jury contempt order that sought to
compel disclosure of editorial decision-makers and their
motives). Thus, in Application of Consumers Union of U.
S., Inc., the district court quashed third-party subpoenas
that sought the publisher’s research methodology and
“procedure by which he formed his conclusions.” 495
F. Supp. 582, 585 (S.D.N.Y. 1980). The court explained
that discovery seeking “to examine the reportorial and
editorial processes . . . would represent a substantial
60. See Kit Walsh & Jillian C. York, Facebook Shouldn’t Give
Politicians More Power Than Ordinary Users, EFF Deeplinks, Oct.
6, 2019, https://www.eff.org/deeplinks/2019/10/facebook-shouldntgive-politicians-more-power-ordinary-users.
31
intrusion on fact gathering and editorial privacy which
are significant aspects of a free press.” Id. at 586.62 And
although this Court declined to create an absolute First
Amendment evidentiary privilege when the publisher is
the defendant and “there is a specific claim of injury arising
from a publication that is alleged to have been knowingly
or recklessly false,” it stated that a “law that subjects the
editorial process to private or official examination merely
to satisfy curiosity or to serve some general end such as
the public interest … would not survive constitutional
scrutiny” under the First Amendment. Herbert v. Lando,
441 U.S. 153, 174 (1974).
Moreover, each law’s explanation requirement
imposes a heavy and ongoing burden on the covered sites,
especially given the required large size of those sites’
user bases. The requirements could apply to billions of
decisions. This extremely costly obligation would force
sites like YouTube to employ burden avoidance methods
that would hinder both sites’ and users’ speech and
First Amendment rights. To avoid high costs, sites may
permit fewer user comments or posts, eliminate content
moderation policies altogether, or greatly simplify content
moderation rules, making automated notices easier to
send, but likely causing more frequent and less targeted
removal of user posts.63
Take, for example, YouTube, which presently
moderates and provides individual notice for about 9
62. See also In re Consumers Union of the U.S., Inc., 32 Fed.
R. Serv. 2d 1373 (S.D.N.Y. 1981).
63. See Daphne Keller, Platform Transparency and the First
Amendment at 31-32, Journal of Free Speech Law, (Mar. 2023),
https://www.journaloffreespeechlaw.org/keller2.pdf.
32
million videos per quarter. Under the Texas law, YouTube
would be required to provide individual notice and appeal
options for moderated user comments as well, increasing
its notice and appeal obligation more than 100-fold.64
III. INTERNET USERS ARE BEST SERVED BY
VOLUNTARY MEASURES FOR CONTENT
MODERATION RATHER THAN EDITORIAL
MANDATES
Internet users are best ser ved when content
moderation is governed by “mechanism[s],” that are
“consensual,” as this Court said in Tornillo, 418 U.S. at
254, however imperfect they may be. Both companies and
users can look to several models for self-regulation. Amici
EFF and NCAC are among a broad range of global civil
society groups that authored the Santa Clara Principles.65
The Internet Commission’s annual Accountability Report
aims to identify best practices scaled to an online service’s
maturity.66
Importantly, those models are not templates for
regulation or legal liability. The Santa Clara Principles
specifically state, “This second iteration of the Santa Clara
Principles has been developed to support companies to
comply with their responsibilities to respect human rights
and enhance their accountability, and to assist human
rights advocates in their work. They are not designed
64. See id., at 34.
65. Santa Clara Principles, https://www.santaclaraprinciples.
org/ (last visited Nov. 27, 2023).
66. Accountability Report 2.0, Internet Comm’n (2022), Mar.
10, 2022 https://inetco.org/report.
33
to provide a template for regulation.”67 In a Note to
Regulators,68 the Principles explain that its standards
do not readily scale or account for the variations among
online services:
The Santa Clara Principles seeks to set
standards. Some services will appropriately
meet these standards. Some will appropriately
meet only some of them, while others will and
should exceed them. Where any particular
service falls will depend on many factors—
number of users, capitalization, age, focus of
service, editorial priorities, user priorities—
that will vary from service to service. While
companies should design their services with
due process in mind from the beginning,
companies must have some flexibility as to how
they implement the Santa Clara Principles,
from their inception, and then evolving over
time as the service matures. The Santa Clara
Principles are thus best seen as touchstones
against which any company’s practices can be
evaluated and compared, not as dictates.
To ma i nt a i n th is necessa r y f lex ibi l ity,
governments should resist legal mandates that
would be prohibitively expensive or practically
impossible to meet. Such mandates discourage
new entrants into the field and thus discourage
67. The Santa Clara Principles, https://www.
santaclaraprinciples.org/ (last visited Nov. 27, 2023) (emphasis in
original).
68. A Note to Regulators, https://www.santaclaraprinciples.
org/regulators/ (last visited Nov. 27, 2023).
34
innovation and competition. Even among wellestablished services, there are no metrics
that readily correspond to a required level of
compliance.
The Principles also discuss other obstacles to
employing them as governmental mandates: the potential
for political exploitation, the variation among regional
and national legal systems that govern these inherently
international services, and the constantly evolving
landscape of available services.
IV. G OV E R M E N T S C A N L O O K T O N O N EDITORIAL REGULATIONS TO BENEFIT
SOCIAL MEDIA USERS
Nothing in this brief should be read as broadly
exempting online services from regulation. Regulatory
measures that do not target the editorial process or are
not enacted in retaliation against or to provide levers
against disfavored editorial policies and decisions may
be acceptable.
Amicus EFF supports regulations that benefit
users, promote user choice and control by encouraging
competition and platform interoperability,69 measures that
can address perceived platform bias.70 Many of the same
69. Comment on Evaluating the Competitive Effects of
Corporate Acquisitions and Mergers, EFF, August 20, 2018, https://
www.eff.org/document/eff-comments-ftc-competition-0.
70. Bennett Cyphers & Cory Doctorow, The New ACCESS
Act Is a Good Start. Here’s How to Make Sure It Delivers., EFF
Deeplinks, June 21, 2021, https://www.eff.org/deeplinks/2021/06/
new-access-act-good-start-heres-how-make-sure-it-delivers.
35
problems that legislators seek to address through editorial
interference are better through data privacy legislation.71
CONCLUSION
For the foregoing reasons, amici curiae urge the Court
to invalidate both laws.
Respectfully Submitted,
Thomas S. Leatherbury
Thomas S. Leatherbury Law,
PLLC
Cumberland Hill School
Building
1901 North Akard Street
Dallas, TX 75201
Christopher Hopkins
McDonald Hopkins
501 South Flagler Drive,
Suite 200
West Palm Beach, FL 33401
David Greene
Counsel of Record
Elizabeth Femia
Electronic Frontier
Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333
davidg@eff.org
Attorneys for Amici Curiae
Dated: December 7, 2023
71. Corynne McSherry, et. al, Privacy First: A Better Way to
Address Online Harms, EFF, Nov. 14, 2023 https://www.eff.org/wp/
privacy-first-better-way-address-online-harms.
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.