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

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 Court of

Appeals for the Eleventh and Fifth Circuits

__________________

BRIEF OF WORLD FAITH FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS IN NO. 22-277

AND RESPONDENT IN NO. 22-555

__________________

Deborah J. Dewart

Attorney at Law

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

James L. Hirsen

Counsel of Record

505 S. Villa Real Drive

Suite 101

Anaheim Hills, CA 92807

(714) 283-8880

james@jameshirsen.com

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

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

INTRODUCTION AND SUMMARY OF THE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. AS THE MODERN “PUBLIC SQUARE,” THE

PLATFORMS ARE OPEN TO A MULTITUDE

OF VOICES AND VIEWPOINTS,

COMPARABLE TO A TRADITIONAL PUBLIC

FORUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Platforms are private actors, yet they

closely resemble a traditional public forum

subject to constitutional constraints. . . . . . . . 4

B. This case is about the rights of the public, the

Platforms’ users, not the Platforms

themselves. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1. The Free Speech Clause does not protect

the freedom to muzzle the speech of

others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. Platform discrimination impacts the First

Amendment right to receive information.

.................................. 8

3. The Platforms are not expressive

associations established to disseminate a

message of their own, but an open public

forum to facilitate the expression of their

users.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii

4. The Platforms are not compelled to speak.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. THE PLATFORMS SHOULD BE TREATED AS

COMMON CARRIERS SUBJECT TO PUBLIC

ACCOMMODATION RESTRICTIONS THAT

PRESERVE FREE EXPRESSION AND

REDUCE INVIDIOUS DISCRIMINATION.. . . 13

A. Common carriers are typically subject to a

regulatory bargain, receiving certain

government favors in exchange for certain

immunities. . . . . . . . . . . . . . . . . . . . . . . . . . . 17

B. The targeted Platforms are technology

giants.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. The Platforms, like common carriers or

places of public accommodation, are widely

open to the public. . . . . . . . . . . . . . . . . . . . . . 21

D. The Platforms are less susceptible to

government collusion pressure if viewpoint

discrimination is prohibited.. . . . . . . . . . . . . 22

E. The Platforms are digital conduits that can

serve to reduce invidious discrimination and

preserve other freedoms, including religious

and political expression. . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iii

TABLE OF AUTHORITIES

CASES

Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987). . . . . . . . . . . . . . . . . . . . . . . 20

Associated Press v. United States,

326 U.S. 1 (1945). . . . . . . . . . . . . . . . . . . . . . . . . 23

Biden v. Knight First Amend. Inst.,

141 S. Ct. 1220 (2021). . . . . . . . . . . 2, 3, 4, 13, 14,

15, 17, 18, 19, 20, 21

Bd. of Educ., Island Trees Union Free Sch. Dist.

Number 26 v. Pico,

457 U.S. 853 (1982). . . . . . . . . . . . . . . . . . . . . . . . 9

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011). . . . . . . . . . . . . . . . . . . . . . . . 3

Conant v. Walters,

309 F.3d 629 (9th Cir. 2002). . . . . . . . . . . . . . . . . 9

Coral Ridge Ministries Media, Inc. v. Amazon.com,

Inc.,

6 F.4th 1247 (11th Cir. 2021) . . . . . . . . . . . . . . . 11

Cubby, Inc. v. CompuServe, Inc.,

776 F. Supp. 135 (S.D.N.Y. 1991). . . . . . . . . . . . 17

Evans v. Newton,

382 U.S. 296 (1966). . . . . . . . . . . . . . . . . . . . . . . . 5

FCC v. Midwest Video Corp.,

440 U.S. 689 (1979). . . . . . . . . . . . . . . . . . . . . . . 14

iv

First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978). . . . . . . . . . . . . . . . . . . . . . . . 7

Fort Lauderdale Food Not Bombs v. City of Fort

Lauderdale,

901 F.3d 1235 (11th Cir. 2018). . . . . . . . . . . . . . 11

German Alliance Ins. Co. v. Lewis,

233 U.S. 389 (1914). . . . . . . . . . . . . . . . . . . . . . . 15

Grosjean v. Am. Press Co.,

297 U.S. 233 (1936). . . . . . . . . . . . . . . . . . . . . . . 20

Hockett v. Indiana,

105 Ind. 250, 5 N.E. 178 (Ind. 1886) . . . . . . . . . 16

Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston,

515 U.S. 557 (1995). . . . . . . . . . . . . . . . . . . . 10, 11

Ingate v. Christie,

3 Car. & K. 61, 175 Eng. Rep. 463

(N. P. 1850) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974). . . . . . . . . . . . . . . . . . . . . . . . 5

Lamont v. Postmaster General,

381 U.S. 301 (1965). . . . . . . . . . . . . . . . . . . . . . . . 9

Malwarebytes, Inc. v. Enigma Software Grp. USA,

LLC,

141 S. Ct. 13 (2020). . . . . . . . . . . . . . . . . . . . . . . 24

Manhattan Cmty. Access Corp. v. Halleck,

139 S. Ct. 1921 (2019). . . . . . . . . . . . . . . . . . . . . . 5

v

Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974). . . . . . . . . . . . . . . . . . . . 11, 12

Minneapolis Star and Tribune Co. v. Minnesota

Commissioner of Revenue,

460 U.S. 575 (1983). . . . . . . . . . . . . . . . . . . . . . . 20

Minnesota Voters Alliance v. Mansky,

138 S. Ct. 1876 (2018). . . . . . . . . . . . . . . . . . . . . . 4

NetChoice, LLC v. AG, Fla.,

34 F.4th 1196 (11th Cir. 2022) . . . 3, 5, 6, 7, 8, 11,

12, 14, 19, 24

NetChoice, LLC v. Paxton,

49 F.4th 439 (5th Cir. 2022) . . . 2, 3, 4, 6, 7, 8, 10,

11, 12, 13, 14, 15, 16,

19, 20, 21, 23, 24

O’Brien v. Western Union Tel. Co.,

113 F.2d 539 (1st Cir. 1940) . . . . . . . . . . . . . . . . 17

Pacific Gas & Electric Co. v. Public Utilities Com.,

475 U.S. 1 (1986). . . . . . . . . . . . . . . . . . . . . . . . . 12

Packingham v. North Carolina,

137 S. Ct. 1730 (2017). . . . . . . . . . . . . . . 2, 3, 6, 20

Primrose v. Western Union Telegraph Co.,

154 U.S. 1 (1894). . . . . . . . . . . . . . . . . . . . . . . . . 13

PruneYard Shopping Ctr. v. Robins,

447 U.S. 74 (1980). . . . . . . . . . . . . . . . . . . . . . . . 12

Rendell-Baker v. Kohn,

457 U.S. 830 (1982). . . . . . . . . . . . . . . . . . . . . . . . 5

vi

Reno v. American Civil Liberties Union,

521 U.S. 844 (1997). . . . . . . . . . . . . . . . . . . . . . 1, 2

Rumsfeld v. Forum for Academic and Institutional

Rights, Inc.,

547 U.S. 47 (2006). . . . . . . . . . . . . . . . . . . . . . . . 12

Semon v. Royal Indem. Co.,

279 F.2d 737 (5th Cir. 1960). . . . . . . . . . . . . . . . 14

Sikhs for Justice, Inc. v. Facebook, Inc.,

697 Fed. Appx. 526 (9th Cir. 2017), aff’g 144 F.

Supp. 3d 1088, 1094 (N.D. Cal. 2015) . . . . . . . . 24

State ex rel. Webster v. Nebraska Telephone Co.,

17 Neb. 126, 22 N.W. 237 (Neb. 1885) . . . . . . . . 16

Stratton Oakmont v. Prodigy,

1995 WL 323710 (N.Y. Sup. Ct. May 24,

1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Turner Broadcasting System, Inc. v. FCC,

512 U.S. 622 (1994) (Turner I) . . . . . . . . . . . 18, 23

Turner Broad. Sys., Inc. v. FCC,

520 U.S. 180 (1997) (Turner II) . . . . . . . . . . 22, 23

United States v. Stevens,

130 S. Ct. 1577 (2010). . . . . . . . . . . . . . . . . . . 9, 15

Walls v. Strickland,

174 N.C. 298, 93 S.E. 857 (N.C. 1917) . . . . . . . . 16

STATUTES

42 U.S.C. § 2000a(b)(3) . . . . . . . . . . . . . . . . . . . . . . 21

47 U.S.C. § 230 . . . . . . . . . . . . . . . . . . . . 17, 18, 24, 25

vii

47 U.S.C. § 230(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . 25

Fla. Stat. § 501.2041(1)(g) . . . . . . . . . . . . . . . . . . . . 19

Tex. Bus. & Com. Code § 120.002(b) . . . . . . . . . . . . 19

Tex. Civ. Prac. & Rem. Code, §§ 143A.001-002 . . . . 9

OTHER AUTHORITIES

Black’s Law Dictionary (11th ed. 2019) . . . . . . . . . 21

Charles K. Burdick, The Origin of the Peculiar

Duties of Public Service Companies, 11 Colum.

L. Rev. 514 (1911) . . . . . . . . . . . . . . . . . . . . . . . . 16

Adam Candeub, Bargaining for Free Speech:

Common Carriage, Network Neutrality,

and Section 230, 22 Yale J. L. & Tech. 391

(2020). . . . . . . . 2, 13, 16, 17, 18, 19, 22, 23, 24, 25

Kate Klonick, The New Governors: The People,

Rules, and Processes Governing Online Speech,

131 Harv. L. Rev. 1598 (2018) . . . . . . . . . . . . . . 22

Murthy v. Missouri, Docket No. 23-411. . . . . . . . . . 22

Restatement (Second) of Torts §581 (1976). . . . . . . 17

1

INTEREST OF AMICUS CURIAE1

World Faith Foundation (“WFF”) as amicus curiae,

respectfully urges this Court to affirm the decision of

the Fifth Circuit and reverse the decision of the

Eleventh Circuit.

World Faith Foundation is a California religious

non-profit, tax-exempt corporation formed on May 2,

2005 to preserve and defend the customs, beliefs,

values, and practices of religious faith and speech, as

guaranteed by the First Amendment, through

education, legal advocacy, and other means. WFF’s

founder is James L. Hirsen, who has served as

professor of law at Trinity Law School and Biola

University in Southern California and is the author of

New York Times bestseller, Tales from the Left Coast,

and Hollywood Nation. Mr. Hirsen is a frequent media

commentator who has taught law school courses on

constitutional law. Co-counsel Deborah J. Dewart is the

author of Death of a Christian Nation (2010) and holds

a degree in theology (M.A.R., Westminster Seminary,

Escondido, CA). WFF has made numerous appearances

in this Court as amicus curiae.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This Court has long recognized that the “vast

democratic forums of the Internet” (Reno v. American

1

Amicus curiae certifies that no counsel for a party authored this

brief in whole or in part and no person or entity, other than amicus

curiae, its members, or its counsel, has made a monetary

contribution to its preparation or submission.

2

Civil Liberties Union, 521 U.S. 844, 868 (1997)), “and

social media in particular,” have become “the most

important places . . . for the exchange of views.”

Packingham v. North Carolina, 137 S. Ct. 1730, 1735

(2017). Now that the internet has assumed this role as

“the primary global platform to exchange ideas,”

freedom of expression online is essential to “both

democracy and innovation.” Adam Candeub,

Bargaining for Free Speech: Common Carriage,

Network Neutrality, and Section 230, 22 Yale J. L. &

Tech. 391, 393 (2020). But the exponential growth of

social media has resulted in its “playing an oversized

and often unaccountable role in shaping public

discourse.” Id. at 394. Control is concentrated “in the

hands of a few private parties.” Biden v. Knight First

Amend. Inst., 141 S. Ct. 1220, 1221 (2021) (Thomas, J.,

concurring in denial of certiorari).

Texas and Florida both passed laws to reign in the

control exercised by gigantic social media platforms

like Facebook and Twitter. The Platforms challenge

these laws, contending “they cannot be regulated as

common carriers because they engage in viewpointbased censorship—the very conduct common carrier

regulation would forbid.” NetChoice, LLC v. Paxton, 49

F.4th 439, 474 (5th Cir. 2022) (emphasis added). But

“[t]his contention is upside down,” an attempt to “avoid

common carrier obligations by violating those same

obligations.” Paxton, 49 F.4th at 474. The Platforms

want to have their “cake” – favorable First Amendment

treatment as publishers when they censor content –

but “eat it too” as conduits free of liability for whatever

platforms users post.

3

The Fifth Circuit upheld the Texas statutory

scheme, while the Eleventh Circuit found the Florida

statute unconstitutional. This Court is now faced with

the task of applying established legal doctrines in this

rapidly evolving context. “[B]asic principles of freedom

of speech and the press . . . do not vary when a new and

different medium for communication appears.” Brown

v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011)

(quotation marks omitted); NetChoice, LLC v. AG, Fla.,

34 F.4th 1196, 1203 (11th Cir. 2022); Paxton, 49 F.4th

at 479. But it is “rarely straightforward” to “apply[] old

doctrines to new digital platforms.” Knight., 141 S. Ct.

at 1221 (Thomas, J., concurring).

ARGUMENT

I. AS THE MODERN “PUBLIC SQUARE,” THE

PLATFORMS ARE OPEN TO A MULTITUDE

OF VOICES AND VIEWPOINTS,

COMPARABLE TO A TRADITIONAL PUBLIC

FORUM.

The Platforms’ role as “the modern public square”

has become even “more entrenched” than when this

Court first attached that label to them in Packingham,

137 S. Ct. at 1737. Paxton, 49 F.4th at 475. An

increasing number of social and business interactions

are facilitated through the Platforms. Ibid. But it is the

Platforms—not the government—asserting a right to

engage in “viewpoint-based censorship in this

litigation.” Id. at 454.

As Judge Jones observes in his concurrence, “[i]t is

hard to construe as ‘speech’ what the speaker never

says, or when it acts so vaguely as to be

4

incomprehensible.” Paxton, 49 F.4th at 495 (Jones, J.,

concurring). Individuals who own and control huge

social media platforms enjoy a multitude of other ways

to express their personal views without intruding on

the expression of the millions of platform users. Ibid. It

would hardly be difficult to establish a separate private

platform that is not large enough to be subject to the

state restrictions. The state statutes are designed to

“ensure that a multiplicity of voices will contend for

audience attention on these platforms,” a “pro-speech,

not anti-speech result.” Ibid.

A. The Platforms are private actors, yet they

closely resemble a traditional public forum

subject to constitutional constraints.

The Second Circuit recently found former President

Trump’s Twitter account to be a public forum, even

though “a private company ha[d] unrestricted authority

to do away with it.” Knight, 141 S. Ct. at 1221

(Thomas, J., concurring). Control over certain highly

public platforms is often concentrated in one or two

persons—“one person controls Facebook (Mark

Zuckerberg), and just two control Google (Larry Page

and Sergey Brin).” Id. at 1224. Neither Trump’s

Twitter account nor the Platforms are “governmentcontrolled spaces.” Id. at 1222; see Minnesota Voters

Alliance v. Mansky, 138 S. Ct. 1876, 1885 (2018). But

much like Trump’s Twitter account, the Platforms

closely “resemble a constitutionally protected public

forum.” Knight, 141 S. Ct. at 1221 (Thomas, J.,

concurring).

Constitutional violations require state action.

Where “a private entity provides a forum for speech,

5

the private entity is not ordinarily constrained by the

First Amendment because the private entity is not a

state actor.” Manhattan Cmty. Access Corp. v. Halleck,

139 S. Ct. 1921 (2019) (emphasis added). There are

narrow exceptions, including where a private entity

performs “a traditional, exclusive public function,” i.e.,

“exercises powers traditionally exclusively reserved to

the State.” Halleck, 139 S. Ct. at 1928-1929; Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 352 (1974). This

is a high bar, because “the government must have

traditionally and exclusively performed the function.”

Halleck, 139 S. Ct. at 1929, citing Rendell-Baker v.

Kohn, 457 U.S. 830, 842 (1982); Jackson, 419 U.S., at

352-353; Evans v. Newton, 382 U.S. 296, 300 (1966).

Operating a public speech forum has not been

recognized as an exclusively government function. The

private operators of public access cable TV channels in

Halleck did not qualify as state actors.

Building on the assumption that the Platforms are

“indisputably private actors,” the Eleventh Circuit

framed the “question at the core of this appeal” as

whether they are engaged in protected expression

“when they moderate and curate” the material they

disseminate. AG, Fla., 34 F.4th at 1203. The circuit

courted noted that “no one has a vested right to force a

platform to allow her to contribute to or consume

social-media content.” Id. at 1204. But the analysis

does not end there, as the Platforms serve a multitude

of users whose own First Amendment rights of

expression must be factored into the equation.

6

B. This case is about the rights of the public,

the Platforms’ users, not the Platforms

themselves.

The internet, particularly through social media, has

become the principal source of information about

current events, employment ads, debating matters of

public concern, “and otherwise exploring the vast

realms of human thought and knowledge.”

Packingham, 137 S. Ct. at 1737. Websites online

“provide perhaps the most powerful mechanisms

available to a private citizen” to speak on public

matters. Ibid.

The Eleventh Circuit’s framing of this case, with its

focus on the speech rights of the Platforms themselves,

misses the point. Perhaps the Platforms are not merely

“dumb pipes” . . . “reflexively transmitting data”

created by others. AG, Fla., 34 F.4th at 1204. But as

the Fifth Circuit points out, “[f]ounding era Americans

. . . viewed the freedom from prior restraints as a

central component of the freedoms of speech and the

press.” Paxton, 49 F.4th at 453. Here, the Platforms

hold the microphone and can freely impose a prior

restraint on their users, while retaining the

unrestrained right to express their own views. The

question is whose speech will be published—the huge

tech giants holding the “microphone,” or the many

smaller voices who lack the resources to establish a

comparable forum of their own. In Texas, “Section 7

protects Texans’ ability to freely express a diverse set of

opinions,” while the Platforms themselves retain their

own freedom to speak. Id. at 454. With “virtually

unlimited space for speech” in cyberspace—unlike the

7

limitations inherent in a newspaper—the Platforms are

unrestrained and may also “distance themselves from

the speech they host.” Id. at 462. Considering the

multitude of conflicting voices, opinions, and vigorous

debates on social media, it is difficult or even illogical

to associate all or even any of them with the Platform

itself.

1. The Free Speech Clause does not

protect the freedom to muzzle the

speech of others.

There is “no amount of doctrinal gymnastics” that

can transform “the First Amendment’s protections for

free speech into protections for free censoring.” Paxton,

49 F.4th at 448, 455 (emphasis in original). The right

of a speaker to remain silent, and to not be compelled

to speak what he does not believe, is not a right to

silence other speakers. “[C]ensorship is not speech

under the First Amendment.” Id. at 448, 466. Nor does

“content-agnostic processing, organizing, and arranging

of expression generate some First Amendment license

to censor.” Id. at 448, 492.

The Platforms do not have carte blanche to stifle the

speech of others, even assuming they are “private

companies with First Amendment rights.” AG, Fla., 34

F.4th at 1210, citing First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765, 781-84 (1978). Yet the Platforms

“attempt to extract a freewheeling censorship right”

from the Free Speech Clause (Paxton, 49 F.4th at 494

(emphasis added)), an “unenumerated right to muzzle

speech” that also has “staggering” implications for

customers of “email providers, mobile phone company,

and bank” (id. at 445).

8

The Fifth Circuit correctly discerned that the Texas

statute (Section 7) “does not chill speech” but rather

“chills censorship.” Paxton, 49 F.4th at 448, 450. In

prohibiting censorship, the state law “will cultivate

rather than stifle the marketplace of ideas.” Id. at 450.

Upholding that law is consistent with the common

carrier doctrine, “which vests the Texas Legislature

with the power to prevent the Platforms from

discriminating against Texas users.” Id. at 448.

2. Platform discrimination impacts the

First Amendment right to receive

information.

As the Eleventh Circuit correctly observes, the

Platforms “create[] a virtual space in which every

user—private individuals, politicians, news

organizations, corporations, and advocacy groups—can

be both speaker and listener.” AG, Fla., 34 F.4th at

1204-1205. But the circuit court’s definition of “speech”

sweeps in blatant censorship, including a platform’s

selective removal of “what it perceives to be incendiary

political rhetoric, pornographic content, or publichealth misinformation.” Id. at 1210. This Court’s

review should not stop with considering whether the

Platforms themselves are speaking, but should also

consider the Platform users’ rights to speak and to

receive information. It is difficult to use the label

“speech” or “editorial discretion” when a Platform

determines what information a user is allowed to see,

or the order in which content is seen. The blocked

content was created by other speakers, and such

“editing” also implicates the right to receive

information. “Public health misinformation,” including

9

content related to the recent COVID-19 pandemic, is a

relevant example. Medical opinions vary, especially as

knowledge constantly expands and changes.

The Texas law at issue in this Petition protects

users by prohibiting the Platforms from blocking “a

user’s ability to receive the expression of another

person” based on viewpoint. Tex. Civ. Prac. & Rem.

Code, §§ 143A.001-002. Without that protection, the

Platforms may stealthily encroach on their users’ right

to receive information about matters of public concern.

The right to speak and the corollary right to listen

are “flip sides of the same coin.” Conant v. Walters, 309

F.3d 629, 643 (9th Cir. 2002) (Kozinski, J., concurring)

(medical marijuana). “[T]he right to receive ideas

follows ineluctably from the sender’s First Amendment

right to send them.” Bd. of Educ., Island Trees Union

Free Sch. Dist. Number 26 v. Pico, 457 U.S. 853, 867

(1982). The marketplace of ideas would be “barren”

with only speakers and no listeners. Lamont v.

Postmaster General, 381 U.S. 301, 308 (1965)

(Brennan, J., concurring).

Courts may not exercise “freewheeling authority to

declare new categories of speech outside the scope of

the First Amendment.” United States v. Stevens, 130

S. Ct. 1577, 1586 (2010). The Platforms certainly may

not arrogate such a right to themselves. Diverse

opinions about public issues, however controversial, are

not beyond the First Amendment. Suppression of

information smothers expression and impedes access to

information about alternatives. The government cannot

wield its regulatory authority as a weapon to suppress

opposing messages. The public has a right to hear

10

alternative views, including viewpoints that may

conflict with the government’s preferred narrative. For

example, during the pandemic many private speakers

used their social media accounts to question the

wisdom, efficacy, and morality of government

responses, and to consider and engage with other

views. Platform users have First Amendment rights to

voice their own concerns, and it is equally the right of

others to access and hear the information—particularly

when the content implicates an urgent matter of public

concern.

3. The Platforms are not expressive

associations established to disseminate

a message of their own, but an open

public forum to facilitate the expression

of their users.

The “core business” and “specific purpose” of the

Platforms is “disseminating the public’s speech.”

Paxton, 49 F.4th at 491. This purpose is in sharp

contrast to an expressive association formed to

disseminate a specific message. The Platforms are also

not analogous to other inherently expressive groups or

events like the parade in Hurley. In Hurley, this Court

concluded that parades are a “form of expression”

where participants “are making some sort of collective

point.” Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, 515 U.S. 557, 568 (1995); see

Paxton, 49 F.4th at 457-458. The Court did not require

a “narrow, succinctly articulable” or “particularized”

message to conclude that the parade was inherently

expressive and entitled to First Amendment protection.

Hurley, at 569. In that environment, each unit

11

marching in the parade would affect the message

conveyed by the sponsors, requiring them “to alter the

expressive content of their parade” (Hurley, at 572573) and forcing them to be “intimately connected” with

the unit’s message (Hurley, at 576; Paxton, 49 F.4th at

458).

In the NetChoice cases, there is no indication the

Platforms have any particular message of their own,

even the “collective point” present in a parade. It is

difficult to even discern “some sort of message” that

would qualify their actions as expressive conduct. See

AG, Fla., 34 F.4th at 1212, citing Coral Ridge

Ministries Media, Inc. v. Amazon.com, Inc., 6 F.4th

1247, 1254 (11th Cir. 2021); Fort Lauderdale Food Not

Bombs v. City of Fort Lauderdale, 901 F.3d 1235, 1240

(11th Cir. 2018). A social media platform is a free, open

public forum that facilitates a multitude of smaller

voices. Those voices present conflicting viewpoints, not

a uniform, consistent message. It is far more analogous

to a government-controlled traditional public forum

than to a private forum or event.

4. The Platforms are not compelled to

speak.

The state statutes at issue in this Petition do not in

any way compel the Platforms either to speak or to be

associated with a particular message. The diverse

viewpoints expressed by social media users cannot all

be identified with the Platforms themselves. This case

is not comparable to the right-of-reply statute in Miami

Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)

that penalized a newspaper that spoke critically about

a candidate. Paxton, 49 F.4th at 455-456. The Texas

12

law, for example, imposes no penalty on the Platforms’

speech. Id. at 462. Unlike a social media platform, a

newspaper’s editors select and curate materials such

that “everything it publishes is, in a sense, the

newspaper’s own speech.” Id. at 456.

In contrast to Tornillo, the speech of the public mall

shoppers in PruneYard was not attributable to the mall

owner. Paxton, 49 F.4th at 456. “The views expressed

by members of the public . . . will not likely be

identified with those of the owner.” PruneYard

Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980). In

Pacific Gas, this Court distinguished PruneYard. The

government had “impermissibly forced [the utility

company] to associate with the views of other

speakers.” Paxton, 49 F.4th at 457. A plurality of this

Court noted the absence of any concern about the

speech of the mall owner, who “did not even allege that

he objected to the content” of the shoppers’ speech.

Pacific Gas & Electric Co. v. Public Utilities Com., 475

U.S. 1, 12 (1986); Paxton, 49 F.4th at 457; AG, Fla., 34

F.4th at 1215.

The military recruiters in Rumsfeld v. Forum for

Academic and Institutional Rights, Inc., 547 U.S. 47

(2006) are comparable to the PruneYard shoppers.

“Neither the shopping mall nor the law schools wanted

to endorse the hosted speech.” Paxton, 49 F.4th at 466.

In the same way, this Court should reject any

contention by the Platforms “that an observer might

construe the act of hosting speech as an expression of

support for its message,” as that is “the precise

contention t[his] Court rejected in both PruneYard and

Rumsfeld.” Ibid.

13

II. THE PLATFORMS SHOULD BE TREATED AS

COMMON CARRIERS SUBJECT TO PUBLIC

ACCOMMODATION RESTRICTIONS THAT

PRESERVE FREE EXPRESSION AND

REDUCE INVIDIOUS DISCRIMINATION.

The Platforms are privately owned entities but they

control major avenues for public speech. Their

extensive control raises “concerns about stifled speech.”

Knight, 141 S. Ct. at 1222 (Thomas, J., concurring).

“[P]art of the solution may be found in doctrines that

limit the right of a private company to exclude,”

including common carrier and public accommodation

laws. Id. at 1222. “[C]lear historical precedent”

supports such regulation. Id. at 1223; Candeub,

Bargaining for Free Speech, 22 Yale J. L. & Tech. at

398-405; Primrose v. Western Union Telegraph Co., 154

U.S. 1, 14 (1894) (telegraphs were “bound to serve all

customers alike, without discrimination”).

Definitions – Common Carriers. Courts and

legal scholars have “spilled much ink” over common

carriage doctrine. Candeub, Bargaining for Free

Speech, 22 Yale J. L. & Tech. at 404. Rather than a

clear, coherent framework, the result seems to be “a

sprawling collection of principles with inconsistent

application.” Ibid. But some key characteristics have

emerged. As the Fifth Circuit observed, common carrier

doctrine dates “back long before our Founding,” vesting

states with “the power to impose nondiscrimination

obligations on communication and transportation

providers that hold themselves out to serve all

members of the public without individualized

bargaining.” Paxton, 49 F.4th at 469. This fits the

14

Platforms like a glove because they freely allow any

adult to create an account and “transmit expression

after agreeing to the same boilerplate terms of service.”

Id. at 474. These “boilerplate” terms are the “same

terms and conditions” offered to all users. Id. at 474

(quoting Semon v. Royal Indem. Co., 279 F.2d 737, 739

(5th Cir. 1960) (emphasis added)). Historically,

communications firms have been “the principal targets

of laws prohibiting viewpoint-discriminatory

transmission of speech.” Paxton, 49 F.4th at 492. The

Platforms are quintessentially “communications firms,”

as their core business is disseminating the speech of

others.

The Eleventh Circuit offered only a circular

definition, first explaining that common carriers offer

communications services to the public to transmit

communications “of their own design and choosing”

without “individualized decisions.” AG, Fla., 34 F.4th

at 1220 (citing FCC v. Midwest Video Corp., 440 U.S.

689, 701 (1979)). But social media users are supposedly

not free to transmit messages “of their own design and

choosing” and the Platforms do make individualized

decisions based on content and viewpoint. The Fifth

Circuit saw through this circular reasoning. The

Platforms argue they are not common carriers “because

they engage in viewpoint-based censorship—the very

conduct common carrier regulation would forbid. . . .

The Platforms appear to believe that any enterprise

can avoid common carrier obligations by violating those

same obligations.” Paxton, 49 F.4th at 474. Under this

“ahistorical approach . . . a firm’s existing desire to

discriminate [would] somehow give[] it a permanent

immunity from common carrier nondiscrimination

15

obligations.” Id. at 475. Similarly, “in the Eleventh

Circuit’s view, a firm can’t become a common carrier

unless the law already recognizes it as such, and the

law may only recognize it as such if it’s already a

common carrier.” Id. at 494.

In contrast to the circular rationale of the Platforms

and the Eleventh Circuit, the states (Florida and

Texas) may regulate the conduct of private firms that

facilitate communication by restricting viewpoint

discrimination against platform users. Paxton, 49 F.4th

at 455.

Historical Precedent. There is a reasonable

argument that the Platforms are “sufficiently akin to

common carriers or places of accommodation” to be

subjected to regulations that “would have been

permissible at the time of the founding.” Knight, 141

S. Ct. at 1223-1224 (Thomas, J., concurring); United

States v. Stevens, 559 U.S. 460, 468 (2010). At the

founding, persons engaged in “common callings” had a

recognized “duty to serve” that “had crystallized into a

key tenet of the common law.” Paxton, 49 F.4th at 469.

The “duty to serve without discrimination was

transplanted to America along with the rest of the

common law.” Ibid (emphasis added).

Over a century ago, this Court acknowledged that “a

business, by circumstances and its nature, may rise

from private to be of public concern and be subject, in

consequence, to governmental regulation.” German

Alliance Ins. Co. v. Lewis, 233 U.S. 389, 411 (1914).

Courts may consider “whether a firm’s service play[s]

a central economic and social role in society.” Paxton,

49 F.4th at 471. Social media plays an increasingly

16

“central economic and social role in society,” and free

expression online is surely a “public concern.” Common

carriage may also be viewed as an offer to the public of

a “fundamental, essential service to society,” on a

nondiscriminatory basis. Candeub, Bargaining for Free

Speech, 22 Yale J. L. & Tech. at 403; Charles K.

Burdick, The Origin of the Peculiar Duties of Public

Service Companies, 11 Colum. L. Rev. 514, 518-25

(1911). Social media is indisputably an “essential

service” in modern times.

Common carriage doctrine applies to a wide variety

of business enterprises. In the 19th and 20th centuries,

and continuing now into the 21st century, it is the

“dominant framework” for regulating telegraphs,

telephones, and other communications networks.

Candeub, Bargaining for Free Speech, 22 Yale J. L. &

Tech. at 402. Early cases about telephone service

illustrate the point. The Supreme Court of Nebraska

granted a writ of mandamus compelling a telephone

company to install a telephone in an attorney’s office.

State ex rel. Webster v. Nebraska Telephone Co., 17

Neb. 126, 22 N.W. 237 (Neb. 1885); see also Walls v.

Strickland, 174 N.C. 298, 93 S.E. 857, 858 (N.C. 1917)

(telephone company is a common carrier with a duty to

provide services without discrimination); Hockett v.

Indiana, 105 Ind. 250, 5 N.E. 178, 182 (Ind. 1886)

(telephone is a “common carrier of news”); Paxton, 49

F.4th at 471-472. The Platforms have cited no cases

“sustaining a constitutional challenge to a state law

imposing nondiscrimination obligations on a common

carrier.” Id. at 473.

17

A. Common carriers are typically subject to a

regulatory bargain, receiving certain

government favors in exchange for certain

immunities.

Early internet platforms had to choose between

surrendering all control over postings and facing no

liability, on the one hand, and “massive liability,” on

the other. Candeub, Bargaining for Free Speech, 22

Yale J. L. & Tech. at 421 (discussing early cases, e.g.,

Stratton Oakmont v. Prodigy, 1995 WL 323710 (N.Y.

Sup. Ct. May 24, 1995); Cubby, Inc. v. CompuServe,

Inc., 776 F. Supp. 135 (S.D.N.Y. 1991)). When the

Communications Decency Act was enacted in 1996, 47

U.S.C. §230 (Section 230) encouraged these early

platforms to regulate matters like pornography while

at the same time facilitating the free flow of ideas.

Candeub, Bargaining for Free Speech, 22 Yale J. L. &

Tech. at 396-397. Section 230 seems to offer a “deal”

analogous to the protection historically offered for

telegraphs. Id. at 422. Telegraphs were protected from

defamation suits unless they knew or had reason to

know that a message they distributed was defamatory;

see Restatement (Second) of Torts §581 (1976); O’Brien

v. Western Union Tel. Co., 113 F.2d 539, 542 (1st Cir.

1940). Knight, 141 S. Ct. at 1223 n. 3 (Thomas, J.,

concurring).

The Platforms want the best of both worlds—the

right to censor disfavored viewpoints and immunity

from legal liability as publishers. Congress seems to

have accommodated their demands, providing certain

legal immunities under Section 230 but without

“impos[ing] corresponding responsibilities, like

18

nondiscrimination.” Knight, 141 S. Ct. at 1226

(Thomas, J., concurring). “Facebook and Google to this

day have no obligations to refrain from discrimination,

carry all lawful messages, or provide any public

good—even though they function as the dominant

communications of their time.” Candeub, Bargaining

for Free Speech, 22 Yale J. L. & Tech. at 422. Section

230 is much like “a common carriage-type deal—but

without the government demanding much in return

from internet platforms . . . all carrot and no stick.” Id.

at 418 (emphasis in original).

In contexts where large firms dominate, as the

Platforms do with respect to internet communication,

it is common for the government to provide special

favors, including “market power, or even monopoly,” or

relief from legal liability, to preserve important public

benefits such as a “universal communications platform,

free speech, and democratic institutions.” Candeub,

Bargaining for Free Speech, 22 Yale J. L. & Tech. at

397-398. Such a “deal” must be balanced by

corresponding obligations, “such as non-discrimination

or universal service.” Id. at 398.

Instead of such regulatory leniency, “it stands to

reason that if Congress may demand that telephone

companies operate as common carriers, it can ask the

same of” social media platforms. Knight, 141 S. Ct. at

1226 (Thomas, J., concurring) (quoting Turner

Broadcasting System, Inc. v. FCC, 512 U.S. 622, 684

(1994) (Turner I) (opinion of O’Connor, J.)). As applied

to communications networks, common carriage doctrine

typically imposes “higher liability standards and other

special obligations,” to ensure “a universal

19

communications platform” free of content

discrimination. Candeub, Bargaining for Free Speech,

22 Yale J. L. & Tech. at 396.

The Platforms are huge entities, broadly open to the

public, that should be regarded as common carriers,

subject to the same regulations as other communication

industries, as a condition for receiving immunity from

certain type of lawsuits. Knight, 141 S. Ct. at 1223

(Thomas, J., concurring); Candeub, Bargaining for Free

Speech, 22 Yale J. L. & Tech. at 402-407. Under such a

regulatory bargain, the Platforms would relinquish the

right to discriminate based on sender or content and in

exchange receive immunity from liability for that

content. Id. at 405-406.

B. The targeted Platforms are technology

giants.

The two state statutes at issue in this Petition

implicate only the very largest platforms. In Florida,

the law applies to those whose annual gross revenues

exceed $100 million or who host at least 100 million

individual platform users globally. Fla. Stat.

§ 501.2041(1)(g); AG, Fla., 34 F.4th at 1205. The Texas

law regulates platforms who serve more than 50

million monthly active users, including Facebook,

Twitter, and YouTube. Tex. Bus. & Com. Code

§ 120.002(b). The Texas legislature found that these

are “central public forums for public debate” and that

“social media platforms with the largest number of

users are common carriers by virtue of their market

dominance.” Paxton, 49 F.4th at 445.

20

The Platforms argue that targeting such a small

number of platforms should subject the law to strict

scrutiny. Paxton, 49 F.4th at 481. They point to cases

with a similarly small range of targets. The ink and

paper tax declared unconstitutional in Minneapolis

Star and Tribune Co. v. Minnesota Commissioner of

Revenue “target[ed] a small group of newspapers.” 460

U.S. 575, 591 (1983). The tax in Arkansas Writers’

Project, Inc. v. Ragland, similarly, “target[ed] a small

group within the press.” 481 U.S. 221, 229 (1987). See

also Grosjean v. Am. Press Co., 297 U.S. 233, 251

(1936) (holding unconstitutional a tax singling out

newspapers with weekly circulations above 20,000).

But in these cases, unlike this Petition, the primary

concern was “the danger of suppressing, particular

ideas.” Grosjean, at 453. Here, “the law aims at

protecting a diversity of ideas and viewpoints by

focusing on the large firms that constitute ‘the modern

public square.’ Packingham, 137 S. Ct. at 1737.”

Paxton, 49 F.4th at 482.

In today’s world, huge digital platforms enjoy a

dominant share of the market and “derive much of

their value from network size.” Knight, 141 S. Ct. at

1224 (Thomas, J., concurring). Accordingly, they are

analogous to common carriers that may be regulated to

ensure broad non-discriminatory access. It does not

matter that there are other ways to communicate if

those alternatives are not comparable. “A person

always could choose to avoid the toll bridge or train and

instead swim the Charles River or hike the Oregon

Trail.” Id. at 1225.

21

C. The Platforms, like common carriers or

places of public accommodation, are widely

open to the public.

The Platforms, “unlike newspapers,” “hold

themselves out to the public” as entities established to

“distribut[e] the speech of the broader public.” Knight,

141 S. Ct. at 1224 (Thomas, J., concurring). Their

function in “carrying” speech “from one user to

another” thus “resemble[s] traditional common

carriers.” Id. at 1224. As “facilitators of other people’s

speech,” they are “indispensable conduits for

transporting information.” Paxton, 49 F.4th at 479. It

would be strange to “conclude each and every

communication transmitted through that

infrastructure still somehow implicates the Platforms’

own speech for First Amendment purposes.” Id. at 480.

The public character of the Platforms, coupled with

their market power, is sufficient to subject them to

regulation as common carriers or public

accommodations. “[A] person [who] holds himself out to

carry goods for everyone as a business . . . is a common

carrier.” Ingate v. Christie, 3 Car. & K. 61, 63, 175 Eng.

Rep. 463, 464 (N. P. 1850); Knight, 141 S. Ct. at 12221223 (Thomas, J., concurring). A “place of public

accommodation” has been defined as a place that

provides “lodging, food, entertainment, or other

services to the public . . . in general.” Black’s Law

Dictionary 20 (11th ed. 2019) (defining “public

accommodation”); Knight, 141 S. Ct. at 1225 (Thomas,

J., concurring); see also 42 U.S.C. §2000a(b)(3).

22

D. The Platforms are less susceptible to

government collusion pressure if viewpoint

discrimination is prohibited.

The potential for government collusion with the

Platforms is not merely an academic question. On

October 20, 2023, this Court granted certiorari in

Murthy v. Missouri, Docket No. 23-411. One of the

questions presented is: Whether the government’s

challenged conduct transformed private social-media

companies’ content-moderation decisions into state

action and violated respondents’ First Amendment

rights.

One commentator characterized internet platforms

as “free expression’s weakest link,” observing that:

“Contrary to the claim that the internet platforms can

be trusted to police themselves, Facebook and Google

face continuous accusations of politicization and unfair

censorship—as well as pressure from governments.”

Adam Candeub, Bargaining for Free Speech, 22 Yale J.

L. & Tech. at 432 citing Kate Klonick, The New

Governors: The People, Rules, and Processes Governing

Online Speech, 131 Harv. L. Rev. 1598 (2018). For

private platform owners who want to resist government

attempts at collusion, an anti-discrimination obligation

would be helpful, because “then the government [could

not] even ask.” Candeub, Bargaining for Free Speech,

22 Yale J. L. & Tech. at 433. In addition, such a

requirement would serve the truly important

government interest in “promoting the widespread

dissemination of information from a multiplicity of

sources.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,

189 (1997) (Turner II).

23

E. The Platforms are digital conduits that can

serve to reduce invidious discrimination

and preserve other freedoms, including

religious and political expression.

Imposing a non-discrimination requirement on the

Platforms would “serve[] important social goals” by

“encouraging full-throated public discussion . . . of

political and social issues.” Candeub, Bargaining for

Free Speech, 22 Yale J. L. & Tech. at 416-417. Such

discussion in turn “promote[s] the dissemination of

information and knowledge in society necessary for

self-governance and creation of resilient political

institutions.” Id. at 401. Each of the states involved in

these Petitions “has a fundamental interest in

protecting the free exchange of ideas and information

in [that] state.” Paxton, 49 F.4th at 482. This Court has

confirmed this interest as “a governmental purpose of

the highest order” that “promotes values central to the

First Amendment.” Turner I, 512 U.S. at 663; Turner

II, 520 U.S. at 189 (“promoting the widespread

dissemination of information from a multiplicity of

sources” is an important government interest);

Associated Press v. United States, 326 U.S. 1, 20 (1945)

(“[T]he widest possible dissemination of information

from diverse and antagonistic sources is essential to

the welfare of the public.”).

In contrast to these long recognized fundamental

interests in preserving free speech and widespread

discussion of ideas, major social media platforms offer

vague platitudes that the Eleventh Circuit agreed

would justify their censorship, but “without even

explaining how viewpoint-based censorship furthers

24

th[ose] interest[s]”: YouTube (to create a “welcoming

community”); Facebook (“foster authenticity, safety,

privacy, and dignity”); Twitter (“to ensure all people

can participate in the public conversation freely and

safely”). Paxton, 49 F.4th at 493; see AG, Fla., 34 F.4th

at 1213. Viewpoint-based censorship interferes with

these goals. The community is hardly “welcoming” to a

user whose expression has been blocked, banned, or

otherwise censored. It is impossible for “all people” to

participate in a forum where their content can be

censored. It is hardly “safe” to post content that is

likely to be blocked. Such censorship attacks the

dignity of users whose views differ from those who

control the platforms.

In the world of television and radio, broadcasters

are regulated “with a view to preserve a diversity of

voices and a robust monopoly place of ideas” and “the

explicit goal to maximize diversity of viewpoint,”

including minority viewpoints. Candeub, Bargaining

for Free Speech, 22 Yale J. L. & Tech. at 418. The same

goals are equally relevant and perhaps even more

urgent as applied to internet speech. Courts, however,

have read “sweeping immunity” into 47 U.S.C. § 230,

extending it “beyond the natural reading of the text”

with potentially “serious consequences.” Malwarebytes,

Inc. v. Enigma Software Grp. USA, LLC, 141 S. Ct. 13,

18 (2020) (Thomas, J., concurring). “With no limits on

an Internet company’s discretion to take down

material, §230 now apparently protects companies who

racially discriminate in removing content.” Id. at 17,

citing Sikhs for Justice, Inc. v. Facebook, Inc., 697 Fed.

Appx. 526 (9th Cir. 2017), aff’g 144 F. Supp. 3d 1088,

1094 (N.D. Cal. 2015) (concluding that “‘any activity

25

that can be boiled down to deciding whether to exclude

material that third parties seek to post online is

perforce immune’” under §230(c)(1)). The implications

of such a broad rendering of section 230 are

“breathtaking” and tend to “place the platforms above

the law.” Candeub, Bargaining for Free Speech, 22 Yale

J. L. & Tech. at 429. That is precisely the concern

behind the state laws at issue in these Petitions.

CONCLUSION

This Court should affirm the decision of the Fifth

Circuit and reverse the decision of the Eleventh

Circuit.

Respectfully submitted,

James L. Hirsen

Counsel of Record

505 S. Villa Real Drive

Suite 101

Anaheim Hills, CA 92807

(714) 283-8880

james@jameshirsen.com

Deborah J. Dewart

Attorney at Law

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae