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

Supreme Court briefJan 23, 2024

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No. 22-555

____________

In the

Supreme Court of the United States

NETCHOICE, LLC, DBA NETCHOICE, ET AL.,

Petitioners,

KEN PAXTON, ATTORNEY GENERAL OF TEXAS,

Respondent.

_______________

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

_______________

BRIEF OF AMICUS CURIAE

LIFE LEGAL DEFENSE FOUNDATION

IN SUPPORT OF RESPONDENT

_________________

CATHERINE SHORT

Counsel of Record

SHEILA A. GREEN

LIFE LEGAL DEFENSE FOUNDATION

PO Box 2105

Napa, CA 94558

(707) 224-6675

kshort@lldf.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ...............................................i

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

INTERESTS OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 2

The Cases NetChoice Cites in Support of

Its Quest for Unfettered First

Amendment Freedom for “Editorial

Discretion” Do Not Apply to Social Media. ...... 2

A. Cases Involving the Editorial Discretion

of Public Access Channels Do Not Rely

on the First Amendment Rights of

Those Private, Heavily Regulated

Stations. .......................................................... 3

B. Social Media Companies Do Not

Exercise Editorial Discretion in the

Same Manner as Newspapers ....................... 5

1. Contrary to NetChoice’s Assertion,

this Court Has Recognized that the

Space/Time Limitations of

Newspapers and Broadcasters

Necessitate Allowance for Editorial

Discretion. .................................................... 5

2. This Court Has Held That, Unlike

Newspapers, Social Media Companies

Are Passive Conduits of the Speech of

Others ........................................................... 8

C. NetChoice’s Hurley Analysis Is Flawed,

Self-Contradictory and Ignores

Subsequent Precedent .................................... 9

II. Editorial Discretion Does Not Receive the

Same Level of Protection in Every

Circumstance. .................................................. 13

III. A Content Neutral Regulation Can Be

Constitutionally Applied to an Entity

That Serves as a Conduit for the Speech

of Others .......................................................... 15

A. Social Media Companies Are Conduits,

Similar to Cable Companies ........................ 15

B. Like the Cable Act, Section 7 Is Content

Neutral .......................................................... 21

1. Section 7 Does Not Alter Social Media

Companies’ Speech .................................... 21

2. Section 7’s Exclusions Are Not Based

on Agreement or Disagreement with

Speech" ....................................................... 22

3. Section 7’s Application to Large Social

Media Companies Is Justified by Their

Market Power ............................................ 22

4. Section 7 Applies to Users’ Speech

Regardless of Viewpoint. ........................... 26

C. Section 7 Satisfies Intermediate

Scrutiny......................................................... 27

CONCLUSION ........................................................... 30

iii

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis,

143 S. Ct. 2298 (2023) ............................................ 16

Agency for Int’l Dev. v. All. for Open Soc’y Int’l,

Inc.,

140 S. Ct. 2082 (2020) ............................................ 10

Ark. Educ. Television Comm’n v. Forbes,

523 U.S. 666 (1998) ...................................... 3, 4, 5, 7

Associated Press v. United States,

326 U.S. 1 (1945) ...................................................... 2

Bd. of Educ. v. Pico,

457 U.S. 853 (1982) ................................................ 27

Columbia Broad. Sys., Inc. v. Democratic Nat’l.

Comm.

412 U.S. 94 (1973) .................................................... 7

Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Boston,

515 U.S. 557 (1995) .......................... 9, 10, 11, 12, 20

Manhattan Comty. Access Corp. v. Halleck,

139 S. Ct. 1921 (2019) .......................................... 3, 4

Miami Herald Publ’g. Co. v. Tornillo,

418 U.S. 241 (1974) .............................................. 5, 6

Pac. Gas & Elec. Co. v. Pub. Util. Comm’n. of

Cal.,

475 U.S. 1 (1986) ...................................................... 5

Packingham v. North Carolina,

582 U.S. 98 (2017) .................................................. 26

Pittsburgh Press Co. v. Pittsburgh Comm’n. on

Human Rels.,

413 U.S. 391 (1973) ................................................ 14

Red Lion Broad. Co. v. FCC,

395 U.S. 367 (1969) ................................................ 15

Reno v. ACLU,

521 U.S. 844 (1997) ................................................ 30

Riley v. Nat’l. Fed’n. of the Blind,

487 U.S. 781 (1988) .................................................. 2

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

512 U.S. 622 (1994), ........... 13, 14, 22, 26, 28, 29, 30

Twitter v. Taamneh,

143 S. Ct. 1206 (2023) .............................. 8, 9, 16, 29

Winter v. Nat’l Res. Def. Council, Inc.,

557 U.S. 7 (2008) ...................................................... 2

Wooley v. Maynard,

430 U.S. 705 (1977) .......................................... 10, 11

Statutes

47 U.S.C. § 534(g)(1) .................................................. 22

Texas H.B. 20 (1)(2) ................................................... 27

Texas H.B. 20 (7) .... 1, 11, 16, 19, 21, 22, 26, 27, 29, 30

Other Authorities

@khamenei_ir, X,

https://twitter.com/khamenei_ir (last visited

Jan. 19, 2024) ......................................................... 19

Andy Crestodina, How Does Social Media Affect

SEO?, Orbit Media Studios,

https://www.orbitmedia.com/blog/how-doessocial-media-affect-seo/ .......................................... 25

Antonio Kim & Alan R. Dennis, Says Who? The

Effects of Presentation Format and Source

Rating on Fake News in Social Media, 43 MIS

Quarterly 3, 1025 (2019) ........................................ 25

Ayatullah Khamenei Speeches English

(@ayatullahkhameneispeechese6557),

YouTube,

https://www.youtube.com/@ayatullahkhamene

ispeechese6557 (last visited Jan. 19, 2024) .......... 19

Cable Television, Programming of,

Encyclopedia.com,

https://www.encyclopedia.com/media/encyclop

edias-almanacs-transcripts-and-maps/cabletelevision-programming ......................................... 21

DIRECTV Residential Terms of Service,

DIRECTV (effective as of Nov. 14, 2023),

https://www.directv.com/legal/directvresidential-terms-of-service/ .................................. 21

GMI Blogger, YouTube Statistics 2024

(Demographics, Users by County & More),

Global Media Insight (Jan. 4, 2023, 1:33 AM),

https://www.globalmediainsight.com/blog/yout

ube-users-statistics/#country (last visited Jan.

8, 2024).................................................................... 24

Group by SaKee Irru, Ayatollah Khameini,

Facebook,

https://www.facebook.com/groups/7664327574

78290 (last visited Jan. 19, 2024) .......................... 19

Jacob Liedke, Luxuan Wang, Social Media and

News Fact Sheet, Pew Research Center (Nov.

15, 2023),

https://www.pewresearch.org/journalism/factsheet/social-media-and-news-fact-sheet/............... 25

Jazmin Goodwin, Gab: Everything You Need to

Know About the Fast-Growing, Controversial

Social Network, CNN.com (Jan. 17, 2021, 4:49

PM),

https://www.cnn.com/2021/01/17/tech/what-isgab-explainer/index.html ....................................... 24

Kevin Krajick, Writing and Submitting an

Opinion Piece, State of the Planet (May 4,

2020),

https://news.climate.columbia.edu/2020/05/04/

writing-submitting-opinion-piece/ ........................... 8

Manual Actions Report, Google Support,

https://support.google.com/webmasters/answe

r/9044175?hl=en (last visited Jan. 8, 2024) .......... 26

Matthew Woodward, Twitter User Statistics

2024: What Happened After “X” Rebranding?,

Search Logistics (Dec. 21, 2023),

https://www.searchlogistics. .................................. 23

Max Zahn, Parler, Platform Popular Among

Conservatives, Temporarily Shut Down After

Acquisition, ABC News (Apr. 14, 2023, 6:04

AM), https://abcnews.go.com/Business/parlerplatform-popular-conservatives-temporarilyshut-after-acquisition/story?id=98582220 ............ 24

Meta Platforms, Inc., Form 10-K for Fiscal Year

Ended Dec. 31, 2022, (Feb. 1, 2023),

vii

https://d18rn0p25nwr6d.cloudfront.net/CIK0001326801/e574646c-c642-42d9-92293892b13aabfb.pdf ................................................... 23

Mike Khorev, How to Use Social Media

Platforms to Improve Google Rankings (Sept.

21, 2022), https://mikekhorev.com/how-to-usesocial-media-platforms-to-improve-googlerankings .................................................................. 25

Naomi Forman-Katz, Galen Stocking, Key Facts

About Truth Social, Pew Research Center

(Nov. 18, 2022),

https://www.pewresearch.org/shortreads/2022/11/18/key-facts-about-truth-socialas-donald-trump-runs-for-u-s-presidentagain/ ...................................................................... 24

Rachel Handley, Social Media SEO: How to

Rank Higher on Social Media & Google,

Semrush Blog (Oct. 10, 2023),

https://www.semrush.com/blog/social-mediaseo/ .......................................................................... 25

Search Engine Market Share Worldwide Dec

2022-Dec 2023, StatCounter,

https://gs.statcounter.com/search-enginemarket-share (last visited Jan. 8, 2024) ............... 26

Stephen Hiltner, ‘To the Editor’: What Happens

When Readers Write Back?, N.Y. Times (Mar.

28, 2017),

https://www.nytimes.com/2017/03/28/insider/t

o-the-editor-what-happens-when-readerswrite-back.html ........................................................ 8

viii

https://www.spectrum.com/policies/terms-ofservice) (last visited Jan. 8, 2024) ......................... 21

U.S. Dep’t of State, Bureau of Counterterrorism,

Country Reports on Terrorism 2022 4-5 (2022) .... 19

What Channels Are Available in Each Package,

DIRECTV, https://www.directv.com/ .................... 17

INTERESTS OF AMICUS CURIAE1

Amicus Life Legal Defense Foundation (“Life

Legal”) is a California non-profit 501(c)(3) public

interest legal and educational organization that

works to assist and support those who advocate in

defense of life. Its mission is to give innocent and

helpless human beings of any age, particularly unborn

children, a trained and committed defense against the

threat of death, and to support their advocates in the

nation’s courtrooms. Life Legal believes life begins at

the moment of conception and does not end until

natural death. It litigates cases to protect human life,

from preborn babies targeted by a billion-dollar

abortion industry to the elderly, disabled, and

medically vulnerable denied life-sustaining care.

Because amicus and other pro-life voices have

experienced viewpoint discrimination by social media,

it is interested in clarification from this Court on

question one – whether the content-moderation

restrictions of Texas H.B. 20 Section 7 comply with

the First Amendment.

SUMMARY OF ARGUMENT

Texas adopted H.B. 20 Section 7 to ban viewpoint

censorship by the largest social media companies. The

core issue is the extent to which the First Amendment

protects viewpoint discrimination by a social media

host who exercises editorial discretion, however

minimal, over the speech of others.

1 No counsel for any party authored this brief in whole or in part;

no party counsel or party made a monetary contribution intended

to fund its preparation or submission; and no person other than

amicus or its counsel funded it.

This Court has stated, “Freedom of the press from

governmental

interference

under

the

First

Amendment does not sanction repression of that

freedom by private interests.” Associated Press v.

United States, 326 U.S. 1, 36 (1945) (holding that

certain monopolistic practices of the Associated Press

violated the Sherman Act). The same is true for

freedom of speech, as the rule against restraints on

the press applies “to cases involving expression

generally.” Riley v. Nat’l. Fed’n. of the Blind, 487 U.S.

781, 797 (1988) (holding that the North Carolina

Charitable Solicitations Act infringed freedom of

speech).

Under this Court’s precedents, the exercise of

editorial decision-making does not enjoy the same

level of First Amendment protection in every context.

NetChoice has presented a flawed argument based on

misapplication of precedent and has consequently not

proven a likelihood of success on the merits. Winter v.

Nat’l Res. Def. Council, Inc., 557 U.S. 7, 20 (2008)

(Winter) (“A plaintiff seeking a preliminary injunction

must establish that he is likely to succeed on the

merits”). Therefore, the decision of the Fifth Circuit to

vacate the preliminary injunction should be upheld.

ARGUMENT

The Cases NetChoice Cites in Support of Its

Quest for Unfettered First Amendment

Freedom for “Editorial Discretion” Do Not

Apply to Social Media.

In its brief, NetChoice makes the broad, general

statement that “the First Amendment protects

private parties’ editorial rights to choose whether and

how to disseminate speech – including speech

generated by others.” Brief of NetChoice 13. (“BNET”)

This assertion cannot be sustained across the board.

Indeed, the first two cases NetChoice cites,

Manhattan Comty. Access Corp. v. Halleck, 139 S. Ct.

1921 (2019) (Halleck) and Ark. Educ. Television

Comm’n v. Forbes, 523 U.S. 666 (1998) (Forbes), say

nothing about the First Amendment rights of the

state-regulated public access channels involved. The

other three cases cited were, as discussed below, based

on the particular circumstances of the medium

involved and are easily distinguishable from the

current case. Moreover, in numerous cases involving

editorial discretion or similar activities in cases not

involving the press, this Court has declined to apply

strict scrutiny and ruled in favor of state action to

regulate the party involved.

A. Cases Involving the Editorial Discretion

of Public Access Channels Do Not Rely

on the First Amendment Rights of Those

Private, Heavily Regulated Stations.

Cases involving state-owned public access

channels do not support NetChoice’s quest for an

unfettered First Amendment right to engage in

viewpoint discrimination. For instance, in Halleck,

cited by NetChoice, this court upheld the suspension

of two individuals from using the public access

channels not because the station had the First

Amendment right to do so, but because the decision

was deemed not to be state action for purposes of the

First Amendment. 139 S.Ct. at 1932.

Furthermore, the State’s regulations required the

public access channels to function almost like

“common carriers” with restrictions on their editorial

discretion. “Those regulations restrict MNN’s editorial

discretion and in effect require MNN to operate

almost like a common carrier.” Id. (emphasis added).

The public access channels had to air programs “on a

first-come, first-served basis.” Id. Importantly, this

Court did not say that the channel had the First

Amendment right to refuse to air the film. In fact, the

opinion specifically noted that that issue was not

being raised. “A distinct question not raised here is

the degree to which the First Amendment protects

private entities such as Time Warner or MNN from

government legislation or regulation requiring those

private entities to open their property for speech by

others.” Id. at 1931, fn. 2 (emphasis in original).

Halleck’s view of the public access channel as similar

to a common carrier cannot be squared with

NetChoice’s claim that the First Amendment supports

their unfettered editorial discretion.

In Forbes, 523 U.S. 666, also cited by NetChoice,

the Court rejected Steve Forbes’ First Amendment

challenge to the decision of the state-owned public

television

broadcaster

Arkansas

Educational

Television Commission (“AETC”) to exclude him from

a presidential debate. This Court held that the debate

was a nonpublic forum and that the decision to

exclude him was a reasonable, viewpoint-neutral

exercise of the station’s journalistic discretion that did

not violated Forbes’ First Amendment rights. Id. at

683. AETC’s decision was based its judgment that

Forbes lacked voter support and was not a serious

contender in the presidential race. This Court did not

say that the AETC had the First Amendment right to

exclude Forbes’s because of his viewpoint. On the

contrary, it left open the possibility that a legislative

body could impose neutral rules on public

broadcasting: “This is not to say the First Amendment

would bar the legislative imposition of neutral rules

for access to public broadcasting.” Id. at 675.

B. Social Media Companies Do Not

Exercise Editorial Discretion in the

Same Manner as Newspapers

1. Contrary to NetChoice’s Assertion, this

Court

Has

Recognized

that

the

Space/Time Limitations of Newspapers

and Broadcasters Necessitate Allowance

for Editorial Discretion.

The Fifth Circuit correctly addressed the role that

space constraints played in the exercise of editorial

discretion in Miami Herald Publ’g. Co. v. Tornillo, 418

U.S. 241 (1974) (Tornillo), and Pac. Gas & Elec. Co. v.

Pub. Util. Comm’n. of Cal., 475 U.S. 1 (1986) (PG&E).

Pet. App. 40a. However, NetChoice asserts, “Tornillo

itself rejected that rationale, reiterating that the First

Amendment protects against compelled publication

even when it would not impose ‘additional costs’ or

require publishers to ‘forgo publication’ of other

speech due to ‘finite’ space.” BNET 27-28.

NetChoice has cherry-picked this language. The

full quote proves that space constraints did factor into

the Court’s decision to give First Amendment

deference to editorial discretion:

Even if a newspaper would face no additional

costs to comply with a compulsory access law

and would not be forced to forgo publication of

news or opinion by the inclusion of a reply, the

Florida statute fails to clear the barriers of the

First Amendment because of its intrusion into

the function of editors. A newspaper is more

than a passive receptacle or conduit for news,

comment, and advertising. The choice of

material to go into a newspaper, and the

decisions made as to limitations on the size and

content of the paper, and treatment of public

issues and public officials -- whether fair or

unfair -- constitute the exercise of editorial

control and judgment.

Tornillo, 475 U.S. at 258 (emphases added).

In context, the quote says the exact opposite of

what NetChoice claims. It is because of, not regardless

of, space constraints that the editorial discretion of

newspapers receives First Amendment protection.

Furthermore, the language in Tornillo referring to

“finite” space also confirms the exact opposite of what

NetChoice is claiming, namely that space constraints

played a determinative role in that opinion:

It is correct, as appellee contends, that a

newspaper is not subject to the finite

technological limitations of time that confront a

broadcaster, but it is not correct to say that, as

an economic reality, a newspaper can proceed to

infinite expansion of its column space to

accommodate the replies that a government

agency determines or a statute commands the

readers should have available.

475 U.S at 257 (emphases added).

Together, these quotes show that Tornillo based

the grant of First Amendment protection to

newspapers’ editorial decision-making in the context

of limited space, regardless of whether the paper had

to incur additional costs or forgo publication, because

the editorial process is inherently and of practical

necessity discriminating.

The relationship between limited broadcast time

and the need for broad editorial discretion was

explained in the decision Columbia Broad. Sys., Inc.

v. Democratic Nat’l. Comm. 412 U.S. 94 (1973). “Since

it is physically impossible to provide time for all

viewpoints, however, the right to exercise editorial

judgment was granted to the broadcaster. The

broadcaster, therefore, is allowed significant

journalistic discretion in deciding how best to fulfill

the Fairness Doctrine obligations. . . .” Id. at 111

(1973) (emphases added). Importantly, in their

exercise of legislatively granted editorial discretion,

broadcasters were still required to uphold the

Fairness Doctrine, which meant providing a balanced

treatment of controversial questions, exactly as the

Texas law requires. Id. at 111-12.

Forbes also explained the nature of editorial

decision-making by broadcasters: “Public and private

broadcasters alike are not only permitted, but indeed

required, to exercise substantial editorial discretion in

the selection and presentation of their programming.

. . . To comply with their obligation to air

programming that serves the public interest,

broadcasters must often choose among speakers

expressing different viewpoints.” 523 U.S. at 674

(emphasis added).

The difference between the editorial function of

newspapers and social media companies is evident

from the results. As the Fifth Circuit noted, 99% of

posts are allowed to remain on social media sites after

screening for spam and obscene content. Pet. App.

35a. In contrast, The New York Times editorial board

publishes only 1 to 1.5 percent of letters that it

receives.2 The paper also receives hundreds of opinion

editorial submissions daily, but publishes “only a

few.”3 Of necessity, limited space requires newspapers

to choose between potential speakers and viewpoints,

which creates in readers an identification between the

newspaper and the published third-party content. No

such limitation exists for social media platforms given

the “near-infinite space” available to them on the

Internet. BNET 28. Tornillo does not support

NetChoice’s position, nor does PG&E, as the Fifth

Circuit explained at Pet.App. 40a, PG&E.

2. This Court Has Held That, Unlike

Newspapers, Social Media Companies Are

Passive Conduits of the Speech of Others

This Court’s assessment of the “editorial decisionmaking” of the social media companies stands in stark

contrast to the practices of newspapers. As discussed

in Twitter v. Taamneh, 143 S. Ct. 1206, 1216 (2023)

(Taamneh), the major social media companies

Facebook, X, and YouTube allow users to post content

“without much (if any) advance screening.” Taamneh

noted that the social media platforms’ relationship

with their billion-plus users was “arm’s length,

passive, and largely indifferent.” Id. at 1227. Finally,

this Court noted “[T]here is no allegation that the

2 Stephen Hiltner, ‘To the Editor’: What Happens When Readers

Write

Back?,

N.Y.

Times

(Mar.

28,

2017),

https://www.nytimes.com/2017/03/28/insider/to-the-editor-whathappens-when-readers-write-back.html.

3 Kevin Krajick, Writing and Submitting an Opinion Piece, State

the

Planet

(May

2020),

https://news.climate.columbia.edu/2020/05/04/writingsubmitting-opinion-piece/.

platforms here do more than transmit information by

billions of people, most of whom use the platforms for

interactions that once took place via mail, on the

phone, or in public areas.” Id. at 1228.

In view of the statistical facts and this Court’s own

understanding of the nature of the companies’

“editorial” practices, NetChoice cannot substantiate

its claim that the limited type of “editorial discretion”

social media sites undertake entitles them to the same

First Amendment deference that newspapers receive.

The rigorous editorial decision-making that

newspapers engage in creates the “intimate

connection”

between

the

paper

and

the

communication that they publish, which gives rise to

the First Amendment protection granted to them.

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of

Boston, 515 U.S. 557, 576 (1995) (Hurley) (discussing

Tornillo and PG&E). No similar “intimate connection”

between these platforms and user content exists.

C. NetChoice’s Hurley Analysis Is Flawed,

Self-Contradictory

and

Ignores

Subsequent Precedent

NetChoice continues its pattern of taking

quotations out of context in its treatment of Hurley.

NetChoice claims Hurley stated that “private entities

are “intimately connected” to the speech they compile

and present—even when they “fail” to “isolate an

exact message.” BNET 28-29. In reality, Hurley

explained that, unlike a group of people randomly

marching down the street, “we use the word ‘parade’

to indicate marchers who are making some sort of

collective point, not just to each other but to

bystanders along the way.” 515 U.S. at 568 (emphasis

added). This Court found that “though the [musical]

score may not produce a particularized message, each

contingent’s expression in the Council’s eyes comports

with what merits celebration on that day.” Id. at 574.

The “intimate connection” results from the selection

process, which is made in accordance with the

collective point and therefore puts the organizer in the

position of appearing to have approved of the message

of the participant: “GLIB’s participation would likely

be perceived as having resulted from the Council’s

customary determination about a unit admitted to the

parade, that its message was worthy of presentation

and quite possibly of support as well.” Id. at

575. Contrary to NetChoice’s assertion, Hurley does

not support the proposition that any private entity is

de facto intimately connected to the speech it compiles

and presents. BNET 28-29. Hurley requires a

“common theme” or “collective point” and a risk of

misattribution. Id. at 576, 568.

Subsequent case law supports the view that

Hurley and PG&E involved a danger of attributing the

speech of one party to another. “As support, plaintiffs

point to First Amendment cases involving speech

misattribution between formally distinct speakers.”

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

140 S. Ct. 2082, 2088 (2020) (emphasis added) (citing

Hurley and PG&E) (holding that foreign affiliates of

the Alliance for Open Society International, Inc.

possessed no First Amendment rights).

NetChoice’s citation to Wooley v. Maynard, 430

U.S. 705 (1977) is also inapposite. The case did not

discuss or even cite Hurley, nor did it involve one

party’s compilation of the speech of others. To the

contrary, the fact that the plaintiffs were required by

the state to carry the motto “Live Free or Die” on the

license plate of their privately owned car carries an

inherent danger of misattribution.4 So Wooley does

not advance NetChoice’s position either.

It is understandable that NetChoice would desire

the Court overlook Hurley’s requirement that a

private entity’s compilation must have a “collective

point.” As the Fifth Circuit noted, social media sites

lack such a collective point. Pet.App. 38a. NetChoice

even acknowledges that not all social media

companies have a common theme but instead “foster[]

self-expression on an array of topics as diverse as

[their] user base[s].” BNET 5. To the extent any

individual social media company, such as Pinterest,

claims to support a common theme or collective point,

it may be able to assert its own challenge against

Section 7, using Hurley to substantiate its position.

But NetChoice itself cannot meet Hurley’s

requirement of a common theme.

NetChoice alleges that editorial policies reflect the

“community each website seeks to foster and the

website’s value judgments about what expression is

worthy of presentation.” BNET 5. Even if Pinterest is

fostering a community of users centered on recipes,

design, etc., Facebook, X, and YouTube cannot make

a similar claim. Terms of service or rules of behavior

do not establish a common theme. If they did, then any

random group of people walking down the street could

be considered a parade because municipalities have

laws that forbid unruly behavior on city sidewalks.

Hurley, 515 U.S. at 568 (differentiating a group of

4 “Here, as in Barnette, we are faced with a state measure which

forces an individual, as part of his daily life - indeed constantly

while his automobile is in public view - to be an instrument for

fostering public adherence to an ideological point of view he finds

unacceptable.” Wooley, 430 U.S. at 715.

people marching from here to there from a parade

which has a “collective point”).

Finally, NetChoice also contradicts itself on

Hurley’s requirements of a “collective point” and the

significance of misattribution of the speech of the

component parts with the compiler. BNET 29. In its

discussion of strict scrutiny, NetChoice cites Hurley

out of context to support its claim that social media

companies convey a message when they present

speech to users:

When Facebook, YouTube, or X present speech

to their users, they convey a message about the

type of speech the websites find acceptable and

the communities they hope to foster. “Since

every participating unit affects the message

conveyed,” requiring a website to include

speech it does not want to include, or present

speech in ways it would rather not, necessarily

alters the content of its message.

BNET 36 (citing Hurley, 515 U.S. at 572-73 )

(emphasis added).

The full quote from Hurley actually says “Since

every participating unit affects the message conveyed

by the private organizers [i.e. the collective point], the

state courts’ application of the statute produced an

order essentially requiring petitioners to alter the

expressive content of their parade.” Id. at 572-73

(emphasis added). NetChoice cannot have it both

ways. Social media companies cannot both deny they

need to show a collective point and also claim that

Section 7’s requirement that they present all users’

speech alters their collective point in violation of their

First Amendment rights under Hurley.

Without a “collective point,” social media

companies lack a message. Therefore, the concerns

NetChoice expresses regarding Section 7 altering the

content of “their speech” simply fall flat.5 Lacking an

intimate connection to the users’ speech, social media

companies are not speaking at all when they allow

users to post on their sites.

II.

Editorial Discretion Does Not Receive the

Same Level of Protection in Every

Circumstance.

Assuming arguendo that editorial discretion is in

some sense speech, this Court’s decision in Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994),

illustrates that a statute that interferes with editorial

discretion is not per se an unconstitutional

infringement on speech. In that case, this Court

upheld the 1992 Cable Act which required cable

operators to set aside some channels for local

broadcast television. The Court acknowledged that

the cable operators exercised editorial discretion over

“which stations or programs to include in [their]

repertoire.” Id. at 636. Yet, with respect to the

programs aired on cable, the Court stated, “Once the

cable operator has selected the programming sources,

the cable system functions, in essence, as a conduit for

the speech of others, transmitting it on a continuous

and unedited basis to subscribers.” Id. at 629

5 “And laws that compel speakers to “alter the content of their

speech” are necessarily “content based. . . .Section 7 is plainly

content based, as it requires covered websites to alter the content

of their speech . . . . [R]equiring a website to include speech it

does not want to include, or present speech in ways it would

rather not, necessarily alters the content of its message.” BNET

36 (citing Hurley, PG&E and other cases).

(emphasis added). The Court acknowledged that the

law interfered with the editorial discretion of cable

operators to a certain degree yet stated that the

interference did not merit the same level of scrutiny

in every situation.

The [FCC] rules reduce the number of channels

over which cable operators exercise unfettered

control, . . . Nevertheless, because not every

interference with speech triggers the same

degree of scrutiny under the First Amendment,

we must decide at the outset the level of scrutiny

applicable to the must-carry provisions.

Id. at 637 (emphasis added). The Court upheld the

provisions because they were content neutral and did

“not depend on the content of the cable operators’

programming.” Id. at 644. Logically, because social

media companies operate more like the cable

companies in Turner—i.e. as conduits—they are not

entitled to the same First Amendment deference as

newspapers. See also Section I.B.2, supra, (discussing

Taamneh.)

Other cases have upheld infringements on the

exercise of editorial discretion in other contexts. In

Pittsburgh Press Co. v. Pittsburgh Comm’n. on

Human Rels., 413 U.S. 376, 391 (1973), this Court

upheld a city ordinance which was construed to forbid

newspapers to carry sex-segregated classified

advertising, even though it minimally interfered with

newspapers’ editorial decisions on the placement of

ads. Id. at 383-84. The Court distinguished the

protection offered the press for content “originated by

Pittsburgh Press, its columnists, or its contributors”

from the decision to deny the protection for editorial

decision-making over the content of third-party

advertisers. Id. at 391.

In Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969)

the Court upheld an FCC decision to require a

broadcasting company to provide reply time to an

individual that the station had attacked personally.

The Court held that the First Amendment rights of

the viewing and listening public were paramount over

the right of the broadcasters. Id. at 391. Presciently,

this Court stated, “Although broadcasting is clearly a

medium affected by a First Amendment interest, . . .

differences in the characteristics of new media justify

differences in the First Amendment standard applied

to them.” Id. at 387 (emphasis added).

III.

A Content Neutral Regulation Can Be

Constitutionally Applied to an Entity That

Serves as a Conduit for the Speech of

Others

A. Social Media Companies Are Conduits,

Similar to Cable Companies

Social media companies’ relationship to the

content on their sites bears several similarities to the

relationship between cable operators and the

programs that they host. They both host speakers—

users and cable programmers, respectively—who then

produce the speech that appears on the platforms.

Cable programmers produce television programs, and

social media users produce posts. Neither cable

operators nor social media companies choose or, for

the most part, produce, the content on their sites. But

while cable operators select programmers (and

therefore the general subject matter of the programs),

social media companies do not even select users. The

users select them as well as the subject matter of their

own posts. So social media companies are conduits

even more so than cable operators because, in their

normal operations, they are more passive with respect

to which users they host and the content of users’

posts. It is only after the users post that social media

companies take any action, which serves to

underscore the passive nature of their relationship to

the content on their sites.

NetChoice has gone to great lengths to describe the

“editorial discretion” that social media companies

practice in order to beef up their claim that their

speech is being infringed by Section 7. But a close look

at their claims reveals that they do nothing more, and

in fact they do less, than cable operators do in their

exercise of editorial discretion.

The “text, audio, graphics and video” that they

make, BNET 4, is for the most part a generic aspect of

the platform, and not an “original, customized” site

such those created by the plaintiff in 303 Creative LLC

v. Elenis, 143 S. Ct. 2298, 2312 (2023). In their

displays of their channel lineups and in the provision

of audio and visual capabilities for programs, cable

operators do the same thing. It is important to note

that the audio and video capabilities facilitate the

speech of users for which social media companies are

passive transmitters, just as cable operators are with

respect to the programs they host. Taamneh, 143 S.Ct.

at 1227; Turner, 512 U.S. at 629.

NetChoice claims the websites edit and organize

customized compilations of content that includes their

own speech, user speech and advertisements matched

to users’ content. BNET 4. To be clear, they do not

alter the content of users’ speech, and they have

specifically

denied

creating

any

content.6

Furthermore, cable operators also provide these

things.

They

include

their

own

speech

(announcements), user speech (cable programs), and

advertisements tailored to specific interests of

viewers.7

NetChoice’s claim that “Every user’s feed is an

“original, customized creation,” “tailored” “for each”

user and intended to “communicate ideas”, BNET 4

(citing 303 Creative, 143 S. Ct. 2298), is a ridiculous

stretch at best. If the feed is “original,” it is because

each user made it so by posting an original comment.

Simply organizing posts is not a creative effort any

more than the organizing of channel lineups is a

creative effort. Cable operators organize cable

programs logically for ease of access by viewers and

allow them to purchase packages according to the

viewers’ interests.8 The social media’s “tailoring” is

not significantly different from what cable operators

do when they allow viewers to choose packages and

deliver only what their customers want to see. The

“communicate[d] ideas” are those of the users, not of

the social media companies, whose platforms lack a

“collective point.” See Sec. I.C., ante.

In a turnabout from its claim that an “intimate

connection” “does not require a risk that the speech

Adam Candeub, Editorial Decision-Making and the First

Amendment, 2 Journal of Free Speech Law 157, 166 (2022)

https://www.journaloffreespeechlaw.org/candeub2.pdf (collecting

examples).

7 Guide to TV Advertising on Cable and Local Broadcast

Networks, Linchpin SEO, https://linchpinseo.com/blog/guide-totv-advertising/ (updated Jan. 10, 2024).

8 See, e.g. What Channels Are Available in Each Package,

DIRECTV, https://www.directv.com/channel-lineup/ (last visited

Jan. 8, 2024).

may be misperceived as having been created by the

disseminator”, BNET 29, NetChoice states that the

“expression is ‘displayed on’ proprietary ‘graphic and

website design’ alongside ‘the name of the company’”

such that ‘[v]iewers will know’ the website is

responsible for the expression on it.” BNET 4-5 (citing

303 Creative). In reality, all viewers will know that the

users have decided to post their expressions on a

particular social media site. Oftentimes, users will

post the same or similar material on other sites as

well. From their own experience posting content, they

know that the social media company is not the source

of the content of user speech. And they recognize the

difference between the generic “graphic and website

design” of the platform and the expressive content of

user speech. NetChoice’s reference to language from

303 Creative regarding the “graphic and website

design” alongside the “name of the company” is in the

context of the “original artwork” which the plaintiff in

that case created for each of her clients that was

displayed on sites containing the name of her

company. 143 S. Ct at 2307. These individualized

designs are nothing like the generic graphics and

website designs that appear on every users’ feed on

social media sites, which are not original for each

user, and that merely identify those sites as the host

of users’ speech.

Perhaps more to the point, if NetChoice truly

believed that users misattributed other user’s speech

to the platforms as they allege, the three main social

media platforms would not be continuing to give a

platform to the supporters of the Ayatollah Khamenei

and his rhetoric.9 As the supreme ruler of Iran, the

leading state sponsor of terrorism, he is responsible

for encouraging and plotting attacks against the

United States. Through proxies, he supports

terrorism across Africa, Asia, Europe and North and

South America.10 The platforms’ continued hosting of

his content fundamentally undermines their concerns

that, if they comply with Section 7, users will believe

they are themselves supporting terrorism despite

them actually opposing it. BNET at 6.

In Turner, this Court held there was “little risk”

that viewers would believe that the contents of cable

programs were endorsed by the cable operators. 512

U.S. at 655. Viewers that subscribe to a particular

cable company in order to watch a program are fully

aware that the program is the creation of HGTV,

ESPN, etc., and not of the cable company. The same is

true for users that log on to Facebook, X, or YouTube.

To further support its claim that users’ speech can

be attributed to the social media companies,

NetChoice goes to great lengths to argue that its

organization of content conveys ideas about what

social media sites consider as “deserving of

expression, consideration and adherence” as well as

“support.” BNET 5-6 (citing Turner and Hurley).

NetChoice argues that the Turner Court held that the

Group by SaKee Irru, Ayatollah Khameini, Facebook,

https://www.facebook.com/groups/766432757478290 (last visited

Jan.

19,

2024);

@khamenei_ir,

https://twitter.com/khamenei_ir (last visited Jan. 19, 2024);

Ayatullah

Khamenei

Speeches

English

(@ayatullahkhameneispeechese6557),

YouTube,

https://www.youtube.com/@ayatullahkhameneispeechese6557

(last visited Jan. 19, 2024).

10 U.S. Dep’t of State, Bureau of Counterterrorism, Country

Reports on Terrorism 2022 4-5 (2022).

cable companies’ “organization” of content conveyed

“ideas” which were affected by “every piece of

expression in a feed.” BNET at 5. True to form,

NetChoice took this general statement of First

Amendment principle out of context. In fact, Hurley

distinguished Turner on this very point:

Thus, when dissemination of a view contrary to

one’s own is forced upon a speaker intimately

connected with the communication advanced,

the speaker’s right to autonomy over the

message

compromised.

Turner

Broadcasting, we found this problem absent in

the cable context, because “given cable’s long

history of serving as a conduit for broadcast

signals, there appears little risk that cable

viewers would assume that the broadcast

stations carried on a cable system convey ideas

or messages endorsed by the cable operator.”

Hurley, 515 U.S. at 576 (emphasis added) (quoting

Turner, 512 U.S. at 655).

Since social media companies’ relationship with

the content on their sites is even more attenuated

than that of cable companies, and users themselves

post content, there is even less reason to think that

users will attribute posts to the company.

NetChoice resorts to citing the existence of terms

of service as a basis for granting First Amendment

protection for its “editorial decisions.” BNET 5-6. But

cable operators have terms of service as well, which

allow them to terminate a subscription when viewers

violate them.11 They also have affiliation agreements

See, e.g., Terms of Service / Policies, Spectrum,

https://www.spectrum.com/policies/terms-of-service) (last visited

(continues)

with programmers and base their decision as to

whether to select a channel on whether that program

will adhere to the agreement.12 Terms of service are

not a “common theme.” See Sec. I.C. They are

irrelevant and do not change the social media

companies’ role as a conduit of users’ speech.

B. Like the Cable Act, Section 7 Is Content

Neutral

1. Section 7 Does Not Alter Social Media

Companies’ Speech

This Court’s analysis of the Cable Act in Turner is

also helpful in assessing whether Section 7 is content

based or content neutral. NetChoice continues its

misapplication of Hurley, by claiming that the law is

content based because it “requires covered websites to

alter the content of their speech.” BNET 36. As

discussed in Section I.C., supra, the law does no such

thing because the social media companies, with only

some possible exceptions not relevant to this facial

challenge, have no “common theme” to alter.

Similarly, Turner said the must-carry rules did not

force the cable operators to alter their messages

because, like the social media companies, they were

merely a conduit of the content they carried. 512 U.S.

at 655.

Jan. 8, 2024); DIRECTV Residential Terms of Service, DIRECTV

(effective

Nov.

14,

2023),

https://www.directv.com/legal/directv-residential-terms-ofservice/.

Cable Television, Programming of, Encyclopedia.com,

https://www.encyclopedia.com/media/encyclopedias-almanacstranscripts-and-maps/cable-television-programming.

2. Section 7’s Exclusions Are Not Based on

Agreement or Disagreement with Speech"

NetChoice claims that the law is content-based

because it excludes certain content from its

prohibition. BNET 37. Pet. App. 82a-83a. However,

the Cable Act in Turner also contained exclusions. It

exempted from the must-carry requirements any

broadcast station that was “predominantly utilized for

the transmission of sales presentations or program

length commercials.” 47 U.S.C. § 534(g)(1). This

exemption did not render the law content based, as it

had nothing to do with the government’s agreement or

disagreement with the message of these broadcast

stations. Turner, 512 U.S. at 642 (citing Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989). The same

is true of the exemptions in Section 7.

3. Section 7’s Application to Large Social

Media Companies Is Justified by Their

Market Power

NetChoice further alleges that, since Section 7

excludes sites that carry news, sports or

entertainment, the law “singles out a few websites for

disfavored treatment.” BNET 37. The cable operators

made the same argument because the Cable Act did

not apply to other members of the press. Turner, 512

U.S. at 659. The Court held that heightened scrutiny

was unwarranted because the application of the mustcarry rules to cable companies only was justified on

the basis of the “’special characteristic’ of the

particular medium being regulated.” Id. at 660.13 This

“special characteristic was the “bottleneck monopoly

power exercised by cable operators and the dangers

this power poses to the viability of broadcast

television.” Id. at 661.

NetChoice’s assertion that Section 7’s application

to social media platforms having more than 50 million

monthly active users in the U.S. is “arbitrary” and

ideologically based ignores the disproportionate size

of the larger companies as compared to the

competitors mentioned by NetChoice – Parler, Gab,

and Truth Social. BNET 8. Just like the cable

operators, the largest social media companies exercise

a “bottleneck monopoly power” over social media

usage on the Internet that warrants singling them

out.14 The market power of Facebook, X, and YouTube

dwarfs that of their competitors. Facebook had 2.96

billion monthly active users and 2 billion daily active

users as of December 32, 2022.15 X had 528.3 million

monthly monetizable active users in 2023.16 YouTube

had more than 2.7 billion monthly active users as of

2023 and over 122 million active users daily. It has

The Fifth Circuit justified the exclusions from Section 7

because, unlike the sites that carry news, sports or

entertainment, social media platforms are user-generated, and

thus are fundamentally different. Pet. App. 82a.

14 The Fifth Circuit discussed the platforms “market power” in

its analysis of the application of the common carrier doctrine to

the platforms. Pet. App at 72a-75a.

15 Meta Platforms, Inc., Form 10-K for Fiscal Year Ended Dec. 31,

2022,

(Feb.

2023),

https://d18rn0p25nwr6d.cloudfront.net/CIK0001326801/e574646c-c642-42d9-9229-3892b13aabfb.pdf.

16 Matthew Woodward, Twitter User Statistics 2024: What

Happened After “X” Rebranding?, Search Logistics (Dec. 21,

2023), https://www.searchlogistics.com/learn/statistics/twitteruser-statistics/.

239 million users in the United States.17 By contrast,

Parler had 700,000 monthly active users in 2022,

Truth Social had 2.8 million,18 and Gab had 3.7

million monthly users globally in 2020.19 To put these

numbers in perspective, if you add up all the users on

the three smaller sites (assuming they are all distinct

users), they total 7.2 million. The number of users on

those sites represents, at best, 0.24% of the monthly

users of Facebook, 1.4% of the monthly active users of

X, and 0.27% of the monthly users on YouTube. In

fact, one Pew Research Poll found that only 1% of

Americans get news regularly from Parler or Gab, and

only 2% get it from Truth Social. Only 6% of

Americans get news from the seven alternative social

media cites studied. Forty-four percent of Americans

were unaware of the existence of any of the

alternative sites. The most well-known alternative

site was Parler, but 61% of Americans had never

heard of it.20 By contrast, 30% of Americans get news

17 GMI Blogger, YouTube Statistics 2024 (Demographics, Users

by County & More), Global Media Insight (Jan. 4, 2023, 1:33 AM),

https://www.globalmediainsight.com/blog/youtube-usersstatistics/#country (last visited Jan. 8, 2024).

18 Max Zahn, Parler, Platform Popular Among Conservatives,

Temporarily Shut Down After Acquisition, ABC News (Apr. 14,

2023, 6:04 AM), https://abcnews.go.com/Business/parlerplatform-popular-conservatives-temporarily-shut-afteracquisition/story?id=98582220.

19 Jazmin Goodwin, Gab: Everything You Need to Know About the

Fast-Growing, Controversial Social Network, CNN.com (Jan. 17,

2021, 4:49 PM), https://www.cnn.com/2021/01/17/tech/what-isgab-explainer/index.html.

20 Naomi Forman-Katz, Galen Stocking, Key Facts About Truth

Social,

Pew

Research

Center

(Nov.

18,

2022),

https://www.pewresearch.org/short-reads/2022/11/18/key-factsabout-truth-social-as-donald-trump-runs-for-u-s-presidentagain/

from Facebook, 26% get it from YouTube, and 12% get

it from X.21 As almost 62% of adults get news from

social media (mostly Facebook), and that number is

increasing; the market power and influence of these

platforms is staggering.22 Therefore, deplatforming

speakers or censoring viewpoints on the large

platforms denies those speakers access to billions of

viewers who would not even know to seek them out on

alternative sites and greatly reduces their presence on

the Internet.

Furthermore, censorship of speakers or viewpoints

weakens the ability of potential viewers and

customers to find the speaker, even if that person has

a website. This is because social media activity

(shares, likes, comments) indirectly results in higher

ranking on search engines like Google. The more

visible a profile is on social media, the more people

will link to and visit the profile’s website. Increased

activity on a website is a search engine optimization

(SEO) tool which results in higher Google ranking.23

Jacob Liedke, Luxuan Wang, Social Media and News Fact

Sheet,

Pew

Research

Center

(Nov.

15,

2023),

https://www.pewresearch.org/journalism/fact-sheet/socialmedia-and-news-fact-sheet/.

22 Antonio Kim & Alan R. Dennis, Says Who? The Effects of

Presentation Format and Source Rating on Fake News in Social

Media, 43 MIS Quarterly 3, 1025, 1026 (2019).

23 Andy Crestodina, How Does Social Media Affect SEO?, Orbit

Media Studios, https://www.orbitmedia.com/blog/how-doessocial-media-affect-seo/; Mike Khorev, How to Use Social Media

Platforms to Improve Google Rankings (Sept. 21, 2022),

https://mikekhorev.com/how-to-use-social-media-platforms-toimprove-google-rankings; Rachel Handley, Social Media SEO:

How to Rank Higher on Social Media & Google, Semrush Blog

(Oct. 10, 2023), https://www.semrush.com/blog/social-media-seo/.

In addition, Google, which owns YouTube and is

responsible for over 91% of Internet searches24, can

manually reduce a website’s ranking in Google

searches.25 The combination of censorship by social

media and Google’s search engine would render a

website impossible to find by anyone other than a

site’s already existing network. It would render the

affected speaker invisible and effectively banish them

from the Internet “public square.” Packingham v.

North Carolina, 582 U.S. 98, 107 (2017) (striking

down statute prohibiting registered sex offenders

from accessing a commercial social networking site if

minors are permitted to become members, likening

the Internet to the “modern public square”).

Suppression on social media can be likened to giving

someone a phone number (in the day of landlines) but

denying them a spot in the phone book. The bottleneck

monopoly power of the large social media companies

therefore justifies singling them out for purposes of

preventing viewpoint-based censorship on those sites.

4. Section 7 Applies to Users’

Regardless of Viewpoint.

Speech

NetChoice asserts that Section 7 suppresses

“particular ideas or viewpoints.” BNET 40. But, like

the must-carry rules, Turner, 512 U.S. at 645, Section

7’s ban on viewpoint discrimination is unrelated to

content because it applies to all viewpoint

24 Search Engine Market Share Worldwide Dec 2022-Dec 2023,

StatCounter, https://gs.statcounter.com/search-engine-marketshare (last visited Jan. 8, 2024).

Manual

Actions

Report,

Google

Support,

https://support.google.com/webmasters/answer/9044175?hl=en

(last visited Jan. 8, 2024).

discrimination regardless of subject matter, or

whether the particular viewpoint is conservative,

liberal, or centrist. The purpose of Section 7, like the

must-carry rules in Turner, is unrelated to the

suppression of speech; rather its purpose is to “protect

the free exchange of ideas and information” in Texas.

H.B. 20 (1)(2) . Texas’ law does not engage in

viewpoint discrimination; it seeks to end it on social

media.

C. Section

Scrutiny

Satisfies

Intermediate

Section 7 is a content-neutral regulation which

“furthers an important or substantial governmental

interest” that “is unrelated to the suppression of free

expression”, and the “incidental restrictions” imposed

on “alleged First Amendment freedoms is no greater

than is essential to the furtherance of that interest.”

Turner, 512 U.S. at 662 (citing United States v.

O'Brien,

391 U.S. 367, 377 (1968)).

Section 7 furthers the important governmental

interest of “protecting the free exchange of ideas and

information in this state.” H.B. 20 (1)(2). It is directly

related to the First Amendment right of the public to

receive ideas as “a necessary predicate to the

recipient’s meaningful exercise of his own rights of

speech, press, and political freedom.” Bd. of Educ. v.

Pico, 457 U.S. 853, 867 (1982) (holding that the Board

of Education’s ban on certain books violated the First

Amendment). This interest is similar to the

governmental purpose of “promoting the widespread

dissemination of information from a multiplicity of

sources” that was upheld as an important government

interest sufficient to satisfy intermediate scrutiny in

Turner. 512 U.S. at 662.

Private censorship is no less damaging to the

fabric of a democratic society than state censorship,

and the government has the constitutional authority

to legislate against it. As this Court cogently stated in

Associated Press v. United States:

It would be strange indeed, however, if the

grave concern for freedom of the press which

prompted adoption of the First Amendment

should be read as a command that the

government was without power to protect that

freedom. . . . That Amendment rests on the

assumption

that

the

widest

possible

dissemination of information from diverse and

antagonistic sources is essential to the welfare

of the public, that a free press is a condition of

a free society. Surely a command that the

government itself shall not impede the free flow

of ideas does not afford non-governmental

combinations a refuge if they impose restraints

upon that constitutionally guaranteed freedom.

. . . Freedom of the press from governmental

interference under the First Amendment does

not sanction repression of that freedom by

private interests.

326 U.S. 1, 35-36 (1945).

Given their inordinately large market power over

the social media audience, these large platforms have

the ability to repress the “free flow of ideas” no less

than the Associated Press did as a corporate

monopoly. This governmental interest, connected as it

is to the government’s responsibility to safeguard

First Amendment freedoms of the public, is, like the

interest asserted in Turner, a “governmental purpose

of the highest order, for it promotes values central to

the First Amendment.” 512 U.S. at 663. This interest

is unrelated to the suppression of free expression or to

the content of any speakers’ messages. Id. at 662. In

fact, Section 7 seeks to safeguard any speaker and any

viewpoint from platform censorship.

Furthermore, the incidental restriction on alleged

First Amendment freedoms is no greater than is

essential to the furtherance of that interest.

NetChoice has cited raw numbers in an effort to

establish how Section 7 “would fundamentally change

the character of these websites.” They state that

Facebook, Google and X took action over a total of 3.86

billion accounts or user submissions involving spam,

pornography, child safety and extremism in a sixmonth period in 2018. BNET 6. However, these raw

numbers are deceiving because the number of posts on

these websites in a six-month period is well over two

hundred billion. (Facebook users post more than 134

billion comments in that time, while X users post more

than 91 billion tweets.26) Furthermore, Section 7 only

bans viewpoint-based editorial decisions. Therefore,

these decisions would not all change if it were allowed

to go into effect. Given that only 1% of posts are

removed as a result of platforms’ “editorial

discretion”, Pet. App. 35a., less than 1% of editorial

decisions would be affected. In comparison, the Cable

Act required cable systems to set aside up to one-third

of their channels for broadcast stations. Turner, 512

U.S. at 630. The actual impact of the Cable Act on

26 “It appears that for every minute of the day, approximately 500

hours of video are uploaded to YouTube, 510,000 comments are

posted on Facebook, and 347,000 tweets are sent on Twitter.”

Taamneh, 143 S.Ct. at 1216 (emphasis in original).

cable systems was greater than the impact Section 7

would have on the platforms and was not considered

burdensome.

“[O]nly

1.18

percent

the

approximately 500,000 cable channels nationwide is

devoted to channels added because of must-carry, . . .

weighted for subscribership, the figure is 2.4 percent.”

Turner II, 520 U.S. at 214.

Section 7 involves less of an intrusion on the

limited “editorial discretion” of the platforms than the

Cable Act imposed on cable operators. The latter have

a limited number of channels, though they are in the

hundreds, Turner, 512 U.S. at 628, as compared to the

limitless Internet. Reno v. ACLU, 521 U.S. 844, 870

(1997) (“the Internet can hardly be considered a

’scarce’ expressive commodity”). Given the role of

space limitations in Tornillo and PG&E, Section I.B.1,

supra, social media companies are in an even weaker

position than cable operators to claim that their

“editorial discretion” is affected by Section 7. They will

not have to give up any channels, or column space, to

comply with the content moderation provision

CONCLUSION

NetChoice has not shown a likelihood of success on

the merits of its First Amendment claims. It has taken

quotations out of context in order to make the case

that every exercise of editorial discretion, no matter

how minimal, warrants the highest level of First

Amendment scrutiny. It has failed to adequately

distinguish cases involving parties that exercised

editorial discretion, yet, as conduits for the speech of

others, did not prevail on their First Amendment

claims. The Fifth Circuit’s decision denying the

preliminary injunction should be upheld.

Respectfully Submitted,

CATHERINE SHORT

Counsel of Record

SHEILA A. GREEN

LIFE LEGAL DEFENSE FOUNDATION

PO Box 2105

Napa, CA 94558

(707) 224-6675

kshort@lldf.org

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.