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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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, ET AL.,
Respondents.
_____________
NETCHOICE, LLC, ET AL.,
Petitioners,
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
Respondent.
_____________
On Writs of Certiorari to the United States Courts
of Appeals for the Fifth and Eleventh Circuits
______________
BRIEF OF THE RUTHERFORD INSTITUTE
AS AMICUS CURIAE IN SUPPORT OF
TEXAS AND FLORIDA
______________
John W. Whitehead
Counsel of Record
William E. Winters
THE RUTHERFORD INSTITUTE
109 Deerwood Road
Charlottesville, VA 22911
(434) 978-3888
legal@rutherford.org
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................... iii
INTEREST OF AMICUS CURIAE ........................... 1
SUMMARY OF THE ARGUMENT ........................... 1
ARGUMENT .............................................................. 3
1. Social media platforms are censoring
disfavored viewpoints, sometimes under the
coercion of the federal government…………...3
2. Censorship by social media platforms is not
“speech” protected by the First Amendment..9
a. Social media censorship is non-expressive
conduct.…………………………..…………...9
b. Congress has statutorily determined in
Section 230 that user content is not the
platforms’ speech—and the platforms
should be prevented from adopting a
contrary position…….…...……..………….12
3. Even if censorship by social media platforms is
considered “speech,” intermediate scrutiny
would apply because the states’ laws limit
only expressive conduct at most..……………15
4. Even if censorship by social media platforms
were considered “speech,” the state laws’
content-moderation restrictions do not violate
the First Amendment…………….……………18
ii
a. Similar restrictions did not violate the
First Amendment in this Court’s most
analogous cases………………..…………...18
b. Social media platforms are common
carriers, and restricting their ability to
censor is permissible………….…………...22
c. At least the Texas law satisfies
intermediate scrutiny as it prevents
monopolies from suppressing speech and
preserves a vital forum for public discourse
without substantially burdening more
speech than necessary....……..…………...27
CONCLUSION ......................................................... 30
iii
TABLE OF AUTHORITIES
Cases
Arcara v. Cloud Books, Inc.,
478 U.S. 697 (1986) ............................................... 10
Associated Press v. United States,
326 U.S. 1 (1945) ....................................... 16, 17, 28
Brown v. Louisiana,
383 U.S. 131 (1966) ................................................. 9
City of Erie v. Pap's A.M.,
529 U.S. 277 (2000) ............................................... 10
Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288 (1984) ............................................... 10
Denver Area Educ. Telcoms. Consortium v. FCC,
518 U.S. 727 (1996) ............................................... 24
Doe v. Twitter, Nos. 22-15103, 22-15104,
2023 U.S. App. LEXIS 10808 (9th Cir. May 3,
2023) ................................................................ 12, 13
FCC v. League of Women Voters,
468 U.S. 364 (1984) ............................................... 24
FCC v. Midwest Video Corp.,
440 U.S. 689 (1979) ............................................... 23
Force v. Facebook,
934 F.3d 53 (2nd Cir. 2019) ............................ 12, 13
Gonzalez v. Google LLC,
598 U.S. 617 (2023) ............................................... 13
iv
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ................................................... 10
Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston,
515 U.S. 557 (1995) ................................9, 11, 19, 20
Miami Herald Pub. Co., Div. of Knight
Newspapers, Inc. v. Tornillo,
418 U.S. 241 (1974) ................................... 19, 20, 21
Missouri v. Biden, No. 3:22-CV-01213,
2023 U.S. Dist. LEXIS 114585 (W.D. La. July
4, 2023) .................................................................... 7
Missouri v. Biden,
83 F.4th 350 (5th Cir. 2023) ............................... 7, 8
Murthy v. Missouri,
601 U.S. ___, 217 L.Ed.2d 178 (2023) .................... 7
Nat'l Asso. of Regulatory Util. Comm'rs v. Fed.
Commc'ns Com.,
525 F.2d 630 (D.C. Cir. 1976) ............................... 23
NetChoice, LLC v. Att’y Gen. Fla.,
34 F.4th 1196 (11th Cir. 2022) ................... 3, 14, 29
NetChoice, LLC v. Moody, No. 4:21CV220-RHMAF,
2021 U.S. Dist. LEXIS 121951 (N.D. Fla. June
30, 2021) ................................................................ 21
Netchoice, LLC v. Paxton,
49 F.4th 439 (5th Cir. 2022) ................................. 15
New Hampshire v. Maine,
532 U.S. 742 (2001) ............................................... 14
v
Packingham v. North Carolina,
582 U.S. 98 (2017) ....................................... 1, 28, 29
Parker v. Google,
242 Fed. Appx. 833 (3rd Cir. 2007) ...................... 12
PruneYard Shopping Ctr. v. Robins,
447 U.S. 74 (1980) ........................................... 19, 20
Railroad Company v. Lockwood,
84 U.S. (17 Wall.) 357 (1873) ................................ 23
Rumsfeld v. Forum for Acad. & Institutional
Rights, Inc.,
547 U.S. 47 (2006) ................................10, 11, 19, 20
Semon v. Royal Indem. Co.,
279 F.2d 737 (5th Cir. 1960) ................................. 23
Spence v. Washington,
418 U.S. 405 (1974) ................................................. 9
Texas v. Johnson,
491 U.S. 397 (1989) ........................................... 9, 10
Tinker v. Des Moines Independent Community
School Dist.,
393 U.S. 503 (1969) ................................................. 9
Turner Broad. Sys. v. FCC,
512 U.S. 622 (1994) ............ 16, 17, 18, 20, 25, 27, 28
Turner Broad. Sys. v. FCC,
520 U.S. 180 (1997) ................................... 19, 27, 28
United States v. O'Brien,
391 U.S. 367 (1968) ..................................... 9, 10, 11
vi
United States Telecomms. Ass'n v. FCC,
825 F.3d 674 (D.C. Cir. 2016) ......................... 24, 25
United States Telecomms. Ass'n v. FCC,
855 F.3d 381 (D.C. Cir. 2017) ............................... 23
Verizon v. FCC,
740 F.3d 623 (D.C. Cir. 2014) ............................... 25
Wisconsin v. Mitchell,
508 U.S. 476 (1993) ............................................... 10
Statutes
47 U.S.C. §230 .....................................2, 13, 15, 29, 30
TEX. CIV. PRAC. & REM. CODE § 143A.001 ............... 29
TEX. CIV. PRAC. & REM. CODE § 143A.002 ............... 29
TEX. CIV. PRAC. & REM. CODE § 143A.006 ............... 29
TEX. BUS. & COM. CODE § 120.001 ........................... 30
Other Authorities
Ben Weingarten, Why Big Tech Censored Our
Podcast Touching on 2020 Election
Irregularities, NEWSWEEK (Mar. 31, 2021),
https://www.newsweek.com/why-big-techcensored-our-podcast-touching-2020-electionirregularities-opinion-1579647 ............................... 4
Christopher S. Yoo, The First Amendment,
Common Carriers, and Public
Accommodations: Net Neutrality, Digital
Platforms, and Privacy, 1 J. FREE SPEECH L.
463 (2021) .............................................................. 22
vii
Corky Siemaszko, YouTube Pulls Florida
Governor’s Video, Says His Panel Spread
COVID-19 Misinformation, CBS NEWS (Apr. 9,
2021), https://perma.cc/L6FD-5J5R ....................... 4
Creating an Account, Facebook,
https://www.facebook.com/help/570785306433
644 (last visited Dec. 25, 2023) ............................. 26
Einar H. Dyvik, The 100 Largest Companies in
the World by Market Capitalization in 2023,
STATISTA (Aug. 30, 2023),
https://www.statista.com/statistics/263264/top
-companies-in-the-world-by-marketcapitalization/........................................................ 17
Elizabeth Culliford, Facebook Removes AntiQuarantine Protest Events in Some U.S.
States, Reuters (Apr. 20, 2020),
https://www.reuters.com/article/us-healthcoronavirus-usa-facebook/facebook-removesanti-quarantine-protest-events-in-some-usstates-idUSKBN2222QK/ ................................... 4, 5
Emily Jacobs, Twitter Won’t Confirm If Users
Can Post About Lab Leak COVID Origin
Theory, THE NEW YORK POST (May 28, 2021),
https://nypost.com/2021/05/28/twitter-wontconfirm-users-can-post-about-covid-lab-leaktheory/...................................................................... 4
Facebook, Inc., FTC v., Federal Trade
Commission (Nov. 17, 2021),
https://www.ftc.gov/legal-library/browse/casesproceedings/191-0134-facebook-inc-ftc-v.............. 17
viii
Julia Carrie Wong, Facebook Blocks Pulitzerwinning Reporter Over Malta Government
Exposé, THE GUARDIAN (May 19, 2017),
https://www.theguardian.com/world/2017/may
/19/facebook-blocks-malta-journalist-josephmuscat-panama-papers ...................................... 5, 6
Justice Department Sues Google for
Monopolizing Digital Advertising
Technologies, United States Department of
Justice – Office of Public Affairs (Jan. 24,
2023), https://www.justice.gov/opa/pr/justicedepartment-sues-google-monopolizing-digitaladvertising-technologies ................................. 17, 18
Musk's $44 Bln Buyout of Twitter Faces U.S.
Antitrust Review –Report, REUTERS (May 5,
2022),
https://www.reuters.com/technology/musks44-bln-buyout-twitter-faces-ftc-antitrustreview-report-2022-05-05/ .................................... 18
Natasha Lennard, Facebook’s Ban on Far-Left
Pages Is an Extension of Trump Propaganda,
THE INTERCEPT (Aug. 20, 2020),
https://perma.cc/Z2JC-YEEB.................................. 6
Press Briefing by Press Secretary Jen Psaki,
July 16, 2021, The White House (July 16,
2021), https://www.whitehouse.gov/briefingroom/press-briefings/2021/07/16/pressbriefing-by-press-secretary-jen-psaki-july-162021/ ........................................................................ 6
ix
Sarah Rumpf, Newt Gingrich Fires Back at
Twitter After His Account Gets Suspended For
‘Hateful Conduct’ (UPDATED), MEDIAITE
(Mar. 5, 2021), https://perma.cc/JST7-AE72 .......... 5
Signing Up With X, X,
https://help.twitter.com/en/using-x/create-xaccount (last visited Dec. 25, 2023) ...................... 26
Simone A. Friedlander, Cyberlaw And Venture
Law: Net Neutrality and the FCC's 2015 Open
Internet Order, 31 BERKELEY TECH. L.J. 905,
907 (2016) ........................................................ 24, 25
Stacy Jo Dixon, Leading Social Media Websites
in the United States as of August 2023, Based
on Share of Visits, STATISTA (Sept. 12, 2023),
https://www.statista.com/statistics/265773/ma
rket-share-of-the-most-popular-social-mediawebsites-in-the-us/ ................................................ 17
Terms of Service, Facebook (July 26, 2022),
https://www.facebook.com/terms.php............. 25, 26
Terms of Service, X (Sept. 29, 2023),
https://twitter.com/en/tos ...................................... 26
Valerie Richardson, ‘Laurel Hubbard is a man’
tweet lands Erick Erickson in Twitter jail, THE
WASHINGTON TIMES (Aug. 7, 2021),
https://www.washingtontimes.com/news/2021/
aug/7/erick-erickson-suspended-twitter-laurelhubbard-ma/ ............................................................ 5
x
Vishal Manve, Twitter Tells Kashmiri
Journalists and Activists That They Will Be
Censored at Indian Government's Request,
ADVOX GLOBAL VOICES (Sept. 14, 2017),
https://advox.globalvoices.org/2017/09/14/kash
miri-journalists-and-activists-face-twittercensorship-at-indian-governments-request/ ...... 4, 5
Vivek H. Murthy, Confronting Health
Misinformation: The U.S. Surgeon General’s
Advisory on Building a Healthy Information
Environment, United States Department of
Health and Human Services (2021),
https://www.hhs.gov/sites/default/files/surgeon
-general-misinformation-advisory.pdf ............... 6, 7
1
INTEREST OF AMICUS CURIAE1
The Rutherford Institute is a nonprofit civil
liberties
organization
headquartered
in
Charlottesville, Virginia. Founded in 1982 by its
President, John W. Whitehead, the Institute
provides legal assistance at no charge to individuals
whose constitutional rights have been threatened or
violated and educates the public about constitutional
and human rights issues affecting their freedoms.
The Rutherford Institute works tirelessly to resist
tyranny and threats to freedom of speech.
SUMMARY OF THE ARGUMENT
The Texas and Florida laws imposing
content-moderation restrictions, which prohibit
viewpoint-based censorship by social media
platforms, comply with and further the purposes of
the First Amendment, and therefore this Court
should uphold those laws, especially the Texas law.
This Court has recognized that “the most
important places (in a spatial sense) for the
exchange of views . . . is cyberspace—the vast
democratic forums of the Internet in general, and
social media in particular.” Packingham v. North
Carolina, 582 U.S. 98, 104-05 (2017) (cleaned up).
Congress likewise recognized the vast democratic
1 Pursuant to Rule 37.6, Amicus Curiae affirms that
no counsel for a party authored this brief in whole or
in part and no person other than Amicus Curiae, its
members, and its counsel made a monetary
contribution intended to fund its preparation or
submission.
2
forums of the internet and noted in Section 230 of
the Communications Decency Act of 1996 that “[t]he
Internet and other interactive computer services
offer a forum for a true diversity of political
discourse,” 47 U.S.C. §230(a)(3), which is what
Section 230 sought to preserve. However, social
media platforms, sometimes under the coercion of
the federal government, have sought to suppress the
diversity of political discourse by censoring and
removing disfavored posts and users from their
forums to suppress speech by citizens and to keep
people ignorant of views which the social media
companies do not like. A remedy to stop this
suppression of citizens’ speech is needed and is
provided
through
the
content-moderation
restrictions of the states’ laws in this case, especially
the Texas law.
Censorship by social media platforms is not
“speech”—and
therefore
warrants
no
First
Amendment protection—for three reasons. First,
social media censorship is non-expressive conduct.
Second, under Section 230 of the Communications
Decency Act of 1996, 47 U.S.C. §230, Congress has
determined that social media platforms do not
“speak” through third-party content, and therefore
the platforms do not have rights related to that
content. Third, social media companies have
repeatedly claimed that third-party content is not
their speech, and so they should be prohibited from
now adopting a contrary position in this case.
Even if social media censorship were
considered “speech,” intermediate scrutiny would
apply because it is expressive conduct at most and
3
the platforms have monopoly-like power to restrict
others’ speech.
Further, this Court’s cases on cable
must-carry rules, publication must-carry rules, and
right-of-property-access rules show that prohibiting
viewpoint-based censorship by social media
platforms does not violate the First Amendment
when these common carrier technologies are
required to indiscriminately carry third-party
speech. Finally, at least the Texas law easily
satisfies intermediate scrutiny because it furthers
two substantial government interests and does not
burden substantially more or less speech than
necessary.
ARGUMENT
1.
Social media platforms are censoring
disfavored viewpoints, sometimes under
the coercion of the federal government.
Social media platforms censor in two primary
ways. First, the platforms “remove[] posts that
violate [their] terms of service or community
standards.” NetChoice, LLC v. Att’y Gen. Fla., 34
F.4th 1196, 1204 (11th Cir. 2022). Second, the
platforms can also “arrange[] available content by
choosing how to prioritize and display posts—
effectively selecting which users’ speech the viewer
will see, and in what order.” Id.
Social media platforms have often removed a
variety of users’ posts for controversial reasons.
Some of these posts involved disfavored scientific
and medical information or discussions. For
4
example, both Facebook and Twitter initially
removed posts claiming that the COVID-19
pandemic began with a lab leak in Wuhan. Emily
Jacobs, Twitter Won’t Confirm If Users Can Post
About Lab Leak COVID Origin Theory, THE NEW
YORK
POST
(May
28,
2021),
https://nypost.com/2021/05/28/twitter-wont-confirmusers-can-post-about-covid-lab-leak-theory/.
Facebook abruptly stopped removing these posts
after President Biden recognized the Wuhan-lab
origin story as a viable theory. Id. YouTube removed
a video in which Florida Governor Ron DeSantis
held a panel discussion of scientists, who questioned
whether young children should wear masks to
combat COVID-19. Corky Siemaszko, YouTube Pulls
Florida Governor’s Video, Says His Panel Spread
COVID-19 Misinformation, CBS NEWS (Apr. 9,
2021), https://perma.cc/L6FD-5J5R.
Other posts involved disfavored political
viewpoints or plans to protest. For example,
YouTube removed a Clarmont Institute podcast that
pointed to evidence that it believed questioned the
integrity of the 2020 presidential election. Ben
Weingarten, Why Big Tech Censored Our Podcast
Touching on 2020 Election Irregularities, NEWSWEEK
(Mar. 31, 2021), https://www.newsweek.com/why-bigtech-censored-our-podcast-touching-2020-electionirregularities-opinion-1579647. Facebook removed
anti-quarantine protest events from its platform in
some states. Elizabeth Culliford, Facebook Removes
Anti-Quarantine Protest Events in Some U.S. States,
REUTERS
(Apr.
20,
2020),
https://www.reuters.com/article/us-healthcoronavirus-usa-facebook/facebook-removes-anti-
5
quarantine-protest-events-in-some-us-statesidUSKBN2222QK/. Twitter alerted numerous
users—including journalists—that it planned to ban
their posts supporting Kashmir’s independence from
India. Vishal Manve, Twitter Tells Kashmiri
Journalists and Activists That They Will Be
Censored at Indian Government's Request, ADVOX
GLOBAL
VOICES
(Sept.
14,
2017),
https://advox.globalvoices.org/2017/09/14/kashmirijournalists-and-activists-face-twitter-censorship-atindian-governments-request/.
Social media platforms have also often
removed users’ accounts for similar controversial
reasons of expressing disfavored political or scientific
views. For example, Twitter suspended former
Speaker of the House Newt Gingrich’s account after
he tweeted that illegal immigrants entering the
United States could create a COVID-19 risk. Sarah
Rumpf, Newt Gingrich Fires Back at Twitter After
His Account Gets Suspended For ‘Hateful Conduct’
(UPDATED),
MEDIAITE
(Mar.
5,
2021),
https://perma.cc/JST7-AE72.
suspended
radio host Eric Erikson’s account after he tweeted
that transgender woman Laurel Hubbard was a man
and should not be allowed to participate in women’s
sports. Valerie Richardson, ‘Laurel Hubbard is a
man’ tweet lands Erick Erickson in Twitter jail, THE
WASHINGTON
TIMES
(Aug.
7,
2021),
https://www.washingtontimes.com/news/2021/aug/7/
erick-erickson-suspended-twitter-laurel-hubbardma/. Facebook blocked a former Pulitzer-prizewinning journalist for his posts claiming that highranking Maltese officials were receiving illicit
payments through offshore shell companies. Julia
Carrie Wong, Facebook Blocks Pulitzer-winning
6
Reporter Over Malta Government Exposé, THE
GUARDIAN
(May
19,
2017),
https://www.theguardian.com/world/2017/may/19/fac
ebook-blocks-malta-journalist-joseph-muscatpanama-papers. And in 2020, Facebook expanded its
“Dangerous Individuals and Organizations” policy
and banned hundreds of organizations. Natasha
Lennard, Facebook’s Ban on Far-Left Pages Is an
Extension of Trump Propaganda, THE INTERCEPT
(Aug. 20, 2020), https://perma.cc/Z2JC-YEEB.
Concern
about
this
viewpoint-based
censorship is heightened in light of substantial
evidence showing that the federal government has
repeatedly attempted to direct what content social
media platforms censor. For example, in July 2021,
White House Press Secretary Jen Paski declared
that the White House was “in regular touch with
social media platforms . . . about areas where we
have concern” about public health “misinformation.”
Press Briefing by Press Secretary Jen Psaki, July 16,
2021, The White House (July 16, 2021),
https://www.whitehouse.gov/briefing-room/pressbriefings/2021/07/16/press-briefing-by-presssecretary-jen-psaki-july-16-2021/. Paski explained
that the White House “regularly” makes social media
companies “aware of the latest narratives dangerous
to public health” and seeks to “engage with them to
better understand the enforcement of social media
platform policies.” Id. She even suggested that social
media platforms should coordinate their efforts so
that all platforms ban misinformation and do so
more quickly. Id.
In 2021, the United States Surgeon General
released a publication entitled “Confronting Health
7
Misinformation.” Vivek H. Murthy, Confronting
Health Misinformation: The U.S. Surgeon General’s
Advisory on Building a Healthy Information
Environment, United States Department of Health
and
Human
Services
(2021),
https://www.hhs.gov/sites/default/files/surgeongeneral-misinformation-advisory.pdf.
The
publication included a section entitled “What
Technology Platforms Can Do.” Id. at 12. The
publication suggested that the platforms change
their policies and algorithms to avoid “amplifying
misinformation,”
that
they
“impose
clear
consequences” on repeat misinformation offenders,
and that they amplify “accurate” information. Id.
Courts
have
recognized
the
federal
government’s pervasive coercion of social media
platforms. A Western District of Louisiana judge
ordered—and the Fifth Circuit largely affirmed—an
order prohibiting the White House and several
federal agencies from communicating with social
media companies about content moderation.
Missouri v. Biden, No. 3:22-CV-01213, 2023 U.S.
Dist. LEXIS 114585 (W.D. La. July 4, 2023);
Missouri v. Biden, 83 F.4th 350 (5th Cir. 2023),
stayed by Murthy v. Missouri, 601 U.S. ___, 217
L.Ed.2d 178 (2023).
In its opinion, the Fifth Circuit declared that
“a group of federal officials has been in regular
contact with nearly every major American socialmedia company about the spread of ‘misinformation’
on their platforms.” Missouri v. Biden, 83 F.4th at
359. The court explained that these federal officials
“urged the platforms to remove disfavored content
8
and accounts from their sites. And, the platforms
seemingly complied.” Id.
The court noted several examples of federal
coercion of social media platforms. For example, “a
White House official told a platform to take a post
down ‘ASAP,’ and instructed it to ‘keep an eye out for
tweets that fall in this same [] genre’ so that they
could be removed, too.” Id. at 360. Additionally, “a
White House official asked ‘what good is’ the
reporting system, and signed off with ‘last time we
did this dance, it ended in an insurrection.’” Id. at
361.
The Fifth Circuit also found that the
platforms complied with the federal government’s
demands. For example, “[o]ne platform employee,
when pressed about not ‘level[ing]’ with the White
House, told an official that he would ‘continue to do
it to the best of [his] ability, and [he will] expect [the
official] to hold [him] accountable.’” Id. In another
case, “one platform said it knew its ‘position on
[misinformation] continues to be a particular
concern’ for the White House, and said it was
‘making a number of changes’ to capture and
downgrade a ‘broader set’ of flagged content.” Id. The
Fifth Circuit concluded that the White House, the
Surgeon General, the CDC, the FBI, and CISA, all
communicated with social media platforms,
attempting to have them censor information. Id. at
360, 364–66.
The Texas and Florida laws are needed to help
prevent such censorship on social media platforms so
that all members of the public can exercise their
9
right to freedom of speech and be informed of
different political and scientific viewpoints.
2.
Censorship by social media platforms is
not “speech” protected by the First
Amendment.
a. Social
media
censorship
non-expressive conduct.
is
Conduct is expressive when the actor intends
to communicate a particularized message and
observers are likely to understand that intended
message. Spence v. Washington, 418 U.S. 405, 410–
11 (1974). Mere intent to communicate a message
using one’s conduct is not enough. United States v.
O'Brien, 391 U.S. 367, 376 (1968). Examples of
expressive conduct include wearing black armbands
to protest the Vietnam War, Tinker v. Des Moines
Independent Community School Dist., 393 U.S. 503,
505 (1969), a black sit-in at a whites-only business to
protest segregation, Brown v. Louisiana, 383 U.S.
131, 141–42 (1966), and burning an American flag as
a protest outside the Republican National
Convention, Texas v. Johnson, 491 U.S. 397, 420
(1989). Additionally, a private Saint Patrick’s Day
parade was expressive conduct because, like a
composer, the parade sponsors selected the
participants who each contributed to the parade’s
overall message and common theme, and both
participants and bystanders generally understand
that a parade is a march to make a point. Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of
Boston, 515 U.S. 557, 568, 574, 576–77 (1995).
10
In contrast, this Court has also identified
several examples of non-expressive conduct to
include physically assaulting someone, Wisconsin v.
Mitchell, 508 U.S. 476, 484 (1993), public nudity,
City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000),
prostitution, Arcara v. Cloud Books, Inc., 478 U.S.
697, 705 (1986), and refusing to pay income taxes to
express disapproval of the IRS, Rumsfeld v. Forum
for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66
(2006) (“FAIR”). And in FAIR, the Court found that
allowing the military to use—or not to use—a law
school’s facilities for recruiting was not inherently
expressive, and people would not interpret the
school’s actions as showing their disagreement. Id.
at 64, 66. However, the law school could still freely
speak about its views on the military’s
homosexuality policies. Id.
Government regulation of expressive conduct
is constitutional if the regulation “furthers an
important or substantial governmental interest,” “is
unrelated to the suppression of free expression,” and
imposes a restriction on free speech “no greater than
is essential to the furtherance of that interest.”
O'Brien, 391 U.S. at 377. This is a “relatively lenient
standard,” Texas v. Johnson, 491 U.S. at 407, and it
is equivalent to intermediate scrutiny for time,
place, and manner restrictions, Holder v.
Humanitarian Law Project, 561 U.S. 1, 4 (2010);
Clark v. Cmty. for Creative Non-Violence, 468 U.S.
288, 298 (1984).
Non-expressive conduct receives no First
Amendment protection. See Wisconsin v. Mitchell,
508 U.S. at 484. Because censorship by social media
platforms is non-expressive conduct, it deserves no
11
First Amendment protections. Social media
censorship is conduct—not speech—because it
consists entirely of actions, not words. Both
removing posts or accounts and deemphasizing them
in their algorithms are actions, not speech. And
social media censorship is non-expressive conduct
because observers would not understand any
message to be conveyed by the platforms through the
censorship, removal, or deemphasizing. Like the law
school in FAIR, the platforms can make their own
posts explaining their disagreement with certain
content or viewpoints. And when the platforms
remove or deemphasize a post or suspend an
account, observers will not know why unless the
platforms explain why. But no one sees the censored
posts—in fact, that’s the point. And even if someone
sees the posts and then the posts disappear, the
viewer does not know why, because either the
platform or the poster could have removed the posts.
And unlike the parade in Hurley, social media
platforms are more like conduits, and less like
composers. Social media platforms have almost no
control over what content users publish, and the
result is anything but a coherent message even if a
programed algorithm selects content based on a
viewer’s preferences to encourage continued
browsing. Finally, even if social media censorship is
expressive
conduct,
the
content-moderation
restrictions of the state laws survive the O’Brien
intermediate scrutiny standard, as discussed further
below.
12
b. Congress
has
statutorily
determined in Section 230 that user
content is not the platforms’
speech—and the platforms should
be prevented from adopting a
contrary position.
Under Section 230, “[n]o provider or user of an
interactive computer service shall be treated as the
publisher or speaker of any information provided by
another information content provider.” 47 U.S.C. §
230(c)(1). Lower courts have consistently upheld
Section 230 and found that social media companies
are not responsible for users' posts—even when they
would be had the posts been their own speech. See,
e.g., Force v. Facebook, 934 F.3d 53, 71 (2nd Cir.
2019) (finding that Section 230 protected Facebook
from
liability
for
terrorist-conducting
communications the Hamas terrorist group sent
using the Facebook platform); Parker v. Google, 242
Fed. Appx. 833, 838 (3rd Cir. 2007) (finding that
Section 230 protected Google from liability for
providing website links allegedly defaming plaintiff);
Doe v. Twitter, Nos. 22-15103, 22-15104, 2023 U.S.
App. LEXIS 10808, at *6 (9th Cir. May 3, 2023)
(finding that Section 230 protected Twitter from
liability for child pornography posted on its
platform).
Pursuant to Section 230, third-party accounts
and posts on social media are not the platform’s
speech—and therefore should not provide any First
Amendment rights to the platform to remove the
content. Through Section 230, Congress has
determined that social media accounts and posts
13
may not implicate social media platforms as a
matter of law. This is true even if the accounts or
posts do implicate their speakers. And courts have
upheld Section 230, refusing to find that it violates
the First Amendment. The only logical conclusion is
that the social media platforms are not “speakers” of
third-party content posted on the platforms. And
because social media platforms are not the
“speakers” of third-party accounts and posts, the
platforms are not entitled to First Amendment
protection from laws imposing content-moderation
restrictions against the platforms removing those
accounts and posts.
Social media companies have repeatedly used
Section 230 to shield themselves from liability for
third-party content on their platforms. See, e.g.,
Opening Brief for Defendant-Appellant at 7, Doe v.
Twitter, Nos. 22-15103, 22-15104, 2023 U.S. App.
LEXIS 10808, at *6 (9th Cir. May 3, 2023) (stating
that “Section 230 bars all causes of action that seek
to hold online platforms like Twitter liable for
hosting content created by a third party” and that
this provision protects Twitter from needing to
“tak[e] responsibility for all messages” posted on its
platform); Brief for Defendant-Appellee at 14, Force,
934 F.3d at 71 (2nd Cir. 2019) (No. 18-397) (stating
that Section 230 “bar[s] all claims seeking to hold a
provider of an internet-based service like Facebook
liable for speech or information posted on the service
by a third-party user”); Brief for Respondent at 23,
Gonzalez v. Google LLC, 598 U.S. 617 (2023) (stating
that Section 230 protected Google from liability
because “petitioners’ claims treat YouTube as a
‘publisher’ or ‘speaker’ because the claims fault
14
YouTube for sorting and displaying, i.e., publishing
or speaking, ISIS videos.”).
Because social media companies, which are
represented by the trade associations that are
parties in these cases, NetChoice, LLC v. Attorney
Gen. Fla., 34 F.4th at 1208, have taken such positions
to shield themselves from liability, they should be
prohibited from taking a contrary position in this
case. Under the doctrine of judicial estoppel:
[w]here a party assumes a certain
position in a legal proceeding, and
succeeds in maintaining that position,
he may not thereafter, simply because
his interests have changed, assume a
contrary position, especially if it be to
the prejudice of the party who has
acquiesced in the position formerly
taken by him.
New Hampshire v. Maine, 532 U.S. 742, 749 (2001).
The purpose of this doctrine is to “protect the
integrity of the judicial process.” Id. Courts consider
several factors when determining whether judicial
estoppel applies. Id. at 750. First, the second
position must be “clearly inconsistent” with the first.
Id. Second, the party must have persuaded a court to
accept its first position, creating inconsistent court
rulings and the impression that the party misled the
court with one of its positions. Id. at 750–51. Third,
the party must derive an unfair advantage—or the
opposing party must suffer an unfair detriment—if
the court adopts both inconsistent positions. Id. at
751.
15
Judicial estoppel should apply here because
these social media platforms claimed that users’
posts are not the platforms’ speech under Section
230 to protect themselves from liability for the
content of those posts. Now that their interests have
changed, they seek to adopt the contrary position—
that these posts in fact are their speech insofar as
they decide whether to publish them. Brief for
Appellees at 17, Netchoice, L.L.C. v. Paxton, 49 F.4th
439 (5th Cir. 2022) (No. 21-51178) (stating that
controlling the “selection and presentation” of thirdparty content is “protected speech activity”). This
position is inconsistent with the platforms’ former
ones, and could lead to inconsistent court rulings
whereby social media platforms receive all the First
Amendment speech protections for posts they host,
while shouldering none of the responsibilities.
Meanwhile, without these state laws’ contentmoderation restrictions, social media users would
suffer the platforms’ unchecked censorship even
though the platforms would suffer no consequences
from permitting the users’ speech.
3.
Even if censorship by social media
platforms
is
considered
“speech,”
intermediate scrutiny would apply
because the states’ laws limit only
expressive conduct at most.
As previously explained, the states’ laws at
most limit expressive conduct—not speech. If the
conduct is considered expressive, then the
intermediate scrutiny standard from O’Brien
applies.
16
This Court has recognized that the
government has more latitude to restrict a
company’s speech when that company uses
monopoly-like power to restrict others’ speech. This
Court has noted that cable broadcasting companies
had tremendous power to control which television
broadcasters obtained entrance into American
homes. Turner Broad. Sys. v. FCC, 512 U.S. 622, 657
(1994) (“Turner I”). The Court warned that “[t]he
potential for abuse of this private power over a
central avenue of communication cannot be
overlooked.” Id. The Court explained that the First
Amendment “does not disable the government from
taking steps to ensure that private interests not
restrict, through physical control of a critical
pathway of communication, the free flow of
information and ideas.” Id. As a result, the Court
refused to apply strict scrutiny to statutory
requirements about which channels the cable
companies must broadcast and applied intermediate
scrutiny instead. Id.
This Court adopted a similar position when
addressing a challenge to anti-trust measures
against
a
newspaper
publishing
monopoly.
Associated Press v. United States, 326 U.S. 1, 19–20
(1945). The Court observed, “[i]t 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.” Id. Rather, the First Amendment
“provide[d] powerful reasons” to support the
anti-trust measures. Id. The First Amendment’s
foundation was that “the widest possible
17
dissemination of information from diverse and
antagonistic sources is essential to the welfare of the
public.” Id. The Court also declared that freedom to
publish is a constitutional right, but “freedom to
combine to keep others from publishing is not.” Id.
Therefore, this Court upheld the anti-trust measures
in Associated Press. Id.
Like the cable companies in Turner I and the
newspaper publishing monopoly in Associated Press,
a few social media companies hold near monopolies
over social media use. Over 97% of social media
visits in the United States occur on five platforms—
Facebook, Instagram, Twitter, Pinterest, and
YouTube. Stacy Jo Dixon, Leading Social Media
Websites in the United States as of August 2023,
Based on Share of Visits, STATISTA (Sept. 12, 2023),
https://www.statista.com/statistics/265773/marketshare-of-the-most-popular-social-media-websites-inthe-us/. By market capitalization, Alphabet (which
owns Google) is worth over $1.3 trillion, and Meta
(which owns Facebook and Instagram) is worth
nearly $600 billion. Einar H. Dyvik, The 100 Largest
Companies in the World by Market Capitalization in
2023,
STATISTA
(Aug.
30,
2023),
https://www.statista.com/statistics/263264/topcompanies-in-the-world-by-market-capitalization/.
All three of Facebook, Google, and Twitter have been
subjects of antitrust investigations—and Facebook
and Google have faced anti-trust lawsuits. Facebook,
Inc., FTC v., Federal Trade Commission (Nov. 17,
2021), https://www.ftc.gov/legal-library/browse/casesproceedings/191-0134-facebook-inc-ftc-v;
Justice
Department Sues Google for Monopolizing Digital
Advertising Technologies, United States Department
of Justice – Office of Public Affairs (Jan. 24, 2023),
18
https://www.justice.gov/opa/pr/justice-departmentsues-google-monopolizing-digital-advertisingtechnologies; Musk's $44 Bln Buyout of Twitter
Faces U.S. Antitrust Review –Report, REUTERS (May
5, 2022), https://www.reuters.com/technology/musks44-bln-buyout-twitter-faces-ftc-antitrust-reviewreport-2022-05-05/. In the face of corporations whose
monopoly-like power threatens to control public
discourse on social media, this Court should apply
intermediate—and not strict—scrutiny and uphold
the state laws’ content-moderation restrictions.
4.
Even if censorship by social media
platforms were considered “speech,” the
state
laws’
content-moderation
restrictions do not violate the First
Amendment.
a. Similar restrictions did not violate
the First Amendment in this
Court’s most analogous cases.
Three types of cases are most analogous to
cases on social media censorship: cases on rights of
access to cable television, cases on rights of access to
newspapers and other publications, and cases on
rights of access to private property and expressive
events.
In Turner I, this Court ruled that the
government might be able to require a cable
television provider to use some of its channels for
local broadcast television stations because the
requirement was content-neutral, and therefore
intermediate scrutiny applied. Turner I, 512 U.S. at
19
626, 627. Later, the Court upheld this local channel
requirement because the requirement furthered
important government interests and did not burden
much more speech than necessary. Turner Broad.
Sys. v. FCC, 520 U.S. 180, 185 (1997) (“Turner II”).
In Miami Herald, this Court ruled that the
government could not force a newspaper that
published criticisms of a political candidate to
publish the candidate’s replies. Miami Herald Pub.
Co., Div. of Knight Newspapers, Inc. v. Tornillo, 418
U.S. 241, 243–44, 256 (1974).
In PruneYard, this Court ruled that a
shopping mall which was open to the public could
not prohibit visitors from passing out leaflets
advocating for Zionism. PruneYard Shopping Ctr. v.
Robins, 447 U.S. 74, 87 (1980). In Hurley, the Court
determined that the government could not require a
private Saint Patrick’s Day parade to include an
LGBTQ group in the parade. Hurley, 515 U.S. at
559. And in FAIR, the Court held that the
government could deny federal funding to a law
school that refused to grant access on its campus to
the United States military because of the military’s
policies on homosexuality. FAIR, 547 U.S. at 64, 66.
In these cases, this Court identified three
primary factors that determine whether the First
Amendment protects speech in situations like this.
First, the Court considers whether the publisher is
functioning more like a “conductor” or a “conduit” of
third parties’ speech. In other words, when a
publisher chooses the materials that it publishes, it
is “more than a passive receptacle or conduit,” and
the government may not control what it publishes.
20
Miami Herald, 418 U.S. at 258. On one hand, cable
television providers did not receive First
Amendment protection because they were conduits.
Turner I, 512 U.S. at 655. Viewers do not assume
that providers approve of the broadcast signals they
carry, and providers regularly disclaimed approval of
their content during the broadcasts. Id. On the other
hand, a parade was expressive conduct because—
like a composer—the parade sponsors selected the
participants, who contributed to the parade’s overall
message. Hurley, 515 U.S. at 574, 576–77. In other
words, the parade sponsors chose the participants
that would contribute to a coherent theme. Id. And
both participants and bystanders generally
understand that a parade is a march that
communicates a message. Id. at 568.
For the second factor, this Court considers
whether the third parties’ speech affects the
platform-owner's own message. For example, in
PruneYard, the Court noted that the shopping center
was open to the public, and therefore people would
not likely associate a visitor’s speech with the
shopping center. PruneYard, 447 U.S. at 87. The
Court also found it significant that the shopping
center could “expressly disavow” any connection with
the speech, such as by posting a disclaimer. Id. And
in FAIR, observers would not understand the law
school’s actions as protests against the military’s
policies, and the law school could still freely speak
about its views on the military’s homosexuality
policies, even if the military used the school’s
facilities for recruiting. FAIR, 547 U.S. at 64, 66.
For the third factor, this Court considers
whether the third party’s speech takes up the
21
publisher’s limited resources. In Miami Herald, the
Court held that the government could not force a
newspaper publisher to expend limited time, money,
and print space on government-required material.
Miami Herald, 418 U.S. at 256–57.
Social media platforms are more like conduits
than conductors when they censor. The platforms
passively allow nearly all content which third parties
post. They remove only a minority of posts and
users—a federal court in Florida has estimated the
number at less than 1%. NetChoice, LLC v. Moody,
No. 4:21CV220-RH-MAF, 2021 U.S. Dist. LEXIS
121951, at *8 (N.D. Fla. June 30, 2021). The
platforms do not select the accounts and posts that
they will publish. Each user is free to post whatever
they want, and the social media platforms generally
cannot control the posts’ content or viewpoints.
Given that millions of people post nearly every
possible content or viewpoint on social media
platforms, the posts and accounts do not create a
coherent message of the platform.
Further, allowing third-party posts or
accounts with which social media platforms disagree
will not affect the platforms’ own speech. Observers
will not assume that the platforms agree with
accounts or posts simply because they appear on the
platforms. And the platforms can make their own
posts declaring their opposition to certain content or
viewpoints. Finally, users do not assume that they
rarely see certain types of content or viewpoints on
the platforms because the platforms remove it and
consider that removal part of the platform’s “speech.”
Users could just as naturally conclude that the
22
content or viewpoints exist on the platforms, but
that they simply have not seen them.
Unlike newspapers, social media platforms
have no physical publishing limits. Newspapers may
only publish a few articles in each issue, and
therefore must reject some submissions if they
receive more than their space will allow. But social
media platforms have no real physical limitations.
Instead, they can host millions of posts and accounts
without the need to choose some and reject others.
Therefore, social media platforms are conduits which
can present their own viewpoints on their limitless
platforms. Because of this, the Court should find
that these platforms cannot use the First
Amendment to justify censoring viewpoints it
disfavors from the public’s speech.
b. Social
media
platforms
are
common carriers, and restricting
their
ability
to
censor
is
permissible.
Though legal scholars disagree about what
makes an entity a common carrier, the dominant
theory is the “holding out” theory. See Christopher S.
Yoo, The First Amendment, Common Carriers, and
Public Accommodations: Net Neutrality, Digital
Platforms, and Privacy, 1 J. FREE SPEECH L. 463, 475
(2021) (“Holding out thus appears to be the most
widely accepted common law definition of common
carriage that courts apply.”). Under this theory, an
entity is a common carrier if the entity claims that it
serves all would-be customers.
23
Both this Court and lower courts have relied
upon the holding out theory of common carriage.
This Court has explained, “[a] common carrier does
not make individualized decisions, in particular
cases, whether and on what terms to deal.” FCC v.
Midwest Video Corp., 440 U.S. 689, 701 (1979)
(quoting Nat'l Asso. of Regulatory Util. Comm'rs v.
Fed. Commc'ns Com., 525 F.2d 630, 641 (D.C. Cir.
1976)). The United States Court of Appeals for the
District of Columbia Circuit has likewise noted that
“[w]hat appears to be essential to the quasi-public
character implicit in the common carrier concept is
that the carrier undertakes to carry for all people
indifferently.” Nat'l Asso. of Regulatory Util.
Comm'rs, 525 F.2d at 641 (quoting Semon v. Royal
Indem. Co., 279 F.2d 737, 739 (5th Cir. 1960)).
Common
carriers
generally
may
not
discriminate against would-be customers. Instead,
they
“generally
must
afford
neutral,
nondiscriminatory access to their services.” United
States Telecomms. Ass'n v. FCC, 855 F.3d 381, 383–
84 (D.C. Cir. 2017). Common carriers may not
renounce
or
waive
this
non-discrimination
requirement, which is part of “the essential duties of
[their]
employment.”
Railroad
Company
v.
Lockwood, 84 U.S. (17 Wall.) 357, 378 (1873). In fact,
claiming that a common carrier may waive this
requirement “seems almost a contradiction in
terms.” Id.
The First Amendment provides little
protection for common carriers’ speech, particularly
when that speech restricts users’ access to the
common carrier’s services. When common carriers
transmit others’ speech, the First Amendment does
24
not shield them from the non-discrimination
requirement. United States Telecomms. Ass'n v.
FCC, 825 F.3d 674, 740 (D.C. Cir. 2016). This is true
because common carriers are by definition conduits
that “merely facilitate the transmission of the speech
of others rather than engage in speech in their own
right.” Id. As a result, laws that require common
carriers to indiscriminately carry all users’ speech do
not create “any First Amendment concern.” Id.
Consistent with this principle, this Court has
repeatedly stated that a low level of scrutiny applies
to regulations of common carrier speech. See FCC v.
League of Women Voters, 468 U.S. 364, 378 (1984)
(“Unlike common carriers, broadcasters are entitled
under the First Amendment to exercise the widest
journalistic freedom consistent with their public
[duties].”); Denver Area Educ. Telcoms. Consortium
v. FCC, 518 U.S. 727, 739 (1996) (“And in respect to
leased channels, their speech interests are relatively
weak because they act less like editors, such as
newspapers or television broadcasters, than like
common carriers, such as telephone companies.”).
Courts have required common carrier
technologies similar to social media platforms to
indiscriminately carry third-party speech. Perhaps
the most telling example is the “net neutrality”
cases. Net neutrality is “the principle that
broadband providers must treat all internet traffic
the same regardless of source.” United States
Telecomms. Ass'n, 825 F.3d at 689. Ultimately, net
neutrality means that an internet provider “treats
all content equally, regardless of origin or type.”
Simone A. Friedlander, Cyberlaw And Venture Law:
Net Neutrality and the FCC's 2015 Open Internet
25
Order, 31 BERKELEY TECH. L.J. 905, 907 (2016). The
United States Court of Appeals for the District of
Columbia Circuit at one time prohibited net
neutrality rules because broadband internet
providers were not classified as common carries.
Verizon v. FCC, 740 F.3d 623, 655, 658–59 (D.C. Cir.
2014). But after the providers were reclassified as
common carriers, the court upheld the net neutrality
restrictions because of the internet providers’
common carrier status. United States Telecomms.
Ass'n, 825 F.3d at 742.
Cable must-carry rules provide another telling
example. As explained above, this Court has found
that the government may regulate cable companies’
channel offerings without violating the First
Amendment. Though the Court did not determine
whether cable companies were common carriers, it
clearly stated that Congress could justify these
regulations by imposing common carrier status.
Congress could “obligate cable operators to act as
common carriers” and then require them to provide
some of their channels to all broadcasters through a
“lottery system or timesharing arrangement.”
Turner I, 512 U.S. at 684. This system would avoid
First Amendment problems, and “it stands to reason
that if Congress may demand that telephone
companies operate as common carriers, it can ask
the same of cable companies.” Id.
Social media platforms are common carriers
because they hold themselves out as servants of all
would-be users. For example, Facebook allows
anyone to use its platforms—and only exempts
people under 13 years old, former sex-offenders,
people who cannot use Facebook’s platform under
26
applicable law, and people whose accounts Facebook
has previously banned. Terms of Service, Facebook
(July
26,
2022),
https://www.facebook.com/terms.php. Twitter (now
X) allows all users except those under 13 years old
and those who cannot use its platform under
applicable law. Terms of Service, X (Sept. 29, 2023),
https://twitter.com/en/tos. And both platforms’
sign-up processes allow nearly anyone to join. To join
Facebook, a new user must simply click “Create New
Account;” enter their name, email address or cell
phone number, password, date of birth, and gender;
click “Sign Up;” and confirm their email address or
cell phone number. Creating an Account, Facebook,
https://www.facebook.com/help/570785306433644
(last visited Dec. 25, 2023). Similarly, to join Twitter
(now X), a new user must click “Sign Up;” enter
information such as their name and their email
address or cell phone number; verify their email
address or cell phone number; and customize their
experience by choosing where they will see Twitter
content.
Signing
Up
With
X,
X,
https://help.twitter.com/en/using-x/create-x-account
(last visited Dec. 25, 2023). Given their own policies
and sign-up process, social media platforms are
common carriers because they hold themselves out
as accepting all would-be users.
Because they are common carriers, social
media platforms generally may not discriminate
against posts or accounts based on their content or
viewpoint. They must serve all would-be users—that
is the meaning of being a common carrier. And like
cable companies and broadband providers, social
media platforms may not use the First Amendment
to shield themselves from their non-discrimination
27
obligation. Instead, they must carry third parties’
speech without discriminating based on content or
viewpoint.
c. At least the Texas law satisfies
intermediate scrutiny because it
prevents
monopolies
from
suppressing speech and preserves a
vital forum for public discourse
without substantially burdening
more speech than necessary.
Intermediate scrutiny is satisfied if a law
furthers a substantial government interest and does
not burden substantially more speech than is
necessary to further that interest. Turner II, 520
U.S. at 213–14. Because the Texas law in particular
furthers two substantial government interests and
does not burden more or less speech than necessary,
the Texas law satisfies intermediate scrutiny.
Governments
further
two
substantial
interests when they prohibit social media
censorship. First, governments have a substantial
interest in preventing monopolies from suppressing
private speech. In particular, “assuring that the
public has access to a multiplicity of information
sources is a governmental purpose of the highest
order, for it promotes values central to the First
Amendment.” Turner I, 512 U.S. at 663. Congress
intended the must-carry requirements for cable
companies to further three interests: “(1) preserving
the benefits of free, over-the-air local broadcast
television,
(2)
promoting
the
widespread
dissemination of information from a multiplicity of
sources, and (3) promoting fair competition in the
28
market for television programming.” Id. at 662. This
Court held that “each of those is an important
governmental
interest”
which
can
satisfy
intermediate scrutiny. Turner II, 520 U.S. at 189–90.
This Court adopted a similar position when
addressing a challenge to anti-trust measures
against
a
newspaper
publishing
monopoly.
Associated Press, 326 U.S. at 19–20. The Court
observed, “[i]t 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.” Id. In fact,
the First Amendment “provide[d] powerful reasons”
to support the anti-trust measures. Id. The First
Amendment’s foundation was that “the widest
possible dissemination of information from diverse
and antagonistic sources is essential to the welfare
of the public.” Id. Freedom to publish is a
constitutional right, but “freedom to combine to keep
others from publishing is not.” Id.
A second substantial government interest is in
preserving social media as a vital forum for public
discourse. A social media platform ban “bars access
to what for many are the principal sources for
knowing current events, checking ads for
employment, speaking and listening in the modern
public square, and otherwise exploring the vast
realms of human thought and knowledge.”
Packingham, 582 U.S. at 107. Given these uses,
social media “provides perhaps the most powerful
mechanisms available to a private citizen to make
his or her voice heard.” Id. “A fundamental principle
of the First Amendment is that all persons have
29
access to places where they can speak and listen,
and then, after reflection, speak and listen once
more.” Id. at 104. And the internet—and social
media particularly—is now “the most important
place[] . . . for the exchange of views.” Id.
The Texas law also does not burden
substantially more or less speech than necessary.
The statute prohibits no more speech than is
necessary to achieve its substantial interests. The
statute prohibits only content-based viewpoint
discrimination. See TEX. CIV. PRAC. & REM. CODE
§ 143A.002(a). And the statute prohibits only the
types of discrimination that the social media
platforms practice. Social media platforms “remove[]
posts that violate its terms of service or community
standards.” NetChoice, LLC v. Att’y Gen. Fla., 34
F.4th at 1204. This removal power corresponds with
the statute’s “block, ban, remove, deplatform”
prohibitions. TEX. CIV. PRAC. & REM. CODE §
143A.001(1). The platforms can also “arrange[]
available content by choosing how to prioritize and
display posts—effectively selecting which users'
speech the viewer will see, and in what order.”
NetChoice, LLC v. Att’y Gen. Fla., 34 F.4th at 1204.
This arrangement ability corresponds with the
statute’s “demonetize, de-boost, restrict, deny equal
access or visibility to” prohibitions. TEX. CIV. PRAC. &
REM. CODE § 143A.001(1). The law still allows social
media censorship when federal law authorizes it,
when sexual exploitation or harassment are
involved, when the speech incites crimes or
threatens violence, and when the speech constitutes
unlawful expression. TEX. CIV. PRAC. & REM. CODE §
143A.006; see also 47 U.S.C. §230(c)(2) and (e)(3)
30
(allowing social media platforms to restrict access to
material which is obscene, lewd, lascivious, filthy,
excessively violent, or harassing).
Additionally, the Texas statute prohibits all of
the speech that violates the interests at stake. The
statute defines “social media platform” to include “an
Internet website or application that is open to the
public, allows a user to create an account, and
enables users to communicate with other users for
the primary purpose of posting information,
comments, messages, or images.” See TEX. BUS. &
COM. CODE § 120.001(1). The statute imposes no
limits based on the platform’s size or other
characteristics. The law specifies no content,
viewpoints, or users that receive particular
attention—all receive equal treatment.
CONCLUSION
The states’ laws prohibiting viewpoint-based
censorship by social media companies do not violate
the First Amendment. Such censorship is not
“speech”—and
therefore
warrants
no
First
Amendment protection. But even if such censorship
is considered expressive conduct, the Texas law
certainly satisfies intermediate scrutiny and does
not violate the First Amendment. Therefore, this
Court should affirm the decision of the Fifth Circuit
and reverse the decision of the Eleventh Circuit.
31
Respectfully submitted,
John W. Whitehead
Counsel of Record
William E. Winters
THE RUTHERFORD INSTITUTE
109 Deerwood Road
Charlottesville, Virginia 22911
(434) 978-3888
legal@rutherford.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.