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, in her official capacity as
Attorney General of Florida, et al.,
Petitioners,
v.
NETCHOICE, LLC d/b/a NETCHOICE, et al.,
Respondents.
---------------------------------♦--------------------------------NETCHOICE, LLC d/b/a NETCHOICE, et al.,
Petitioners,
v.
KEN PAXTON, in his official capacity as
Attorney General of Texas,
Respondent.
---------------------------------♦--------------------------------On Writs Of Certiorari To The
United States Courts Of Appeals
For The Fifth And Eleventh Circuits
---------------------------------♦--------------------------------BRIEF OF MOMS FOR LIBERTY AND
INSTITUTE FOR FREE SPEECH AS AMICI CURIAE
SUPPORTING PETITIONERS IN NO. 22-277
AND RESPONDENT IN NO. 22-555
---------------------------------♦--------------------------------ALAN GURA
Counsel of Record
ENDEL KOLDE
INSTITUTE FOR FREE SPEECH
1150 Connecticut Ave., N.W.,
Suite 801
Washington, DC 20036
(202) 301-3300
agura@ifs.org
Counsel for Amici Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
Interests of Amici Curiae.....................................
1
Summary of Argument ........................................
2
Argument .............................................................
4
I.
The First Amendment’s application to the
internet does not sanction whatever social
media platforms wish to do .......................
4
II. The right to exclude speech belongs to
speakers who craft their own messages, not
to conduits for the transmission of speech
that they neither create nor select ..............
6
1. Creative professionals .........................
7
2. Newspapers ......................................... 10
3.
Parades, cable systems, and correspondence ............................................ 11
4. Law schools and shopping malls ......... 13
5. Social media platforms—when seeking to avoid liability ............................ 15
III.
Prohibiting viewpoint discrimination does
not impact the platforms’ First Amendment
rights ..........................................................
IV. The platforms’ viewpoint discrimination
seriously disrupts the political process .....
V. Prohibiting platform viewpoint discrimination is consistent with free speech ........
VI. States should be given the space to solve
the problem of social media censorship.....
Conclusion............................................................
19
22
29
32
34
ii
TABLE OF AUTHORITIES
Page
CASES
303 Creative LLC v. Elenis,
143 S. Ct. 2298 (2023) ........................................... 7, 8
Ariz. State Legis. v. Ariz. Indep. Redistricting
Comm’n,
576 U.S. 787 (2015) .................................................32
Associated Press v. United States,
326 U.S. 1 (1945) ................................................. 3, 21
Bailey v. United States,
568 U.S. 186 (2013) .................................................18
Buckley v. Valeo,
424 U.S. 1 (1976) ............................................... 30, 31
Citizens United v. FEC,
558 U.S. 310 (2010) .................................................30
Denver Area Educ. Telecomms. Consortium, Inc.
v. FCC,
518 U.S. 727 (1996) ...................................................6
First Nat’l Bank v. Bellotti,
435 U.S. 765 (1978) .................................................30
Good News Club v. Milford Cent. Sch.,
533 U.S. 98 (2001) ...................................................20
Heart of Atlanta Motel, Inc. v. United States,
379 U.S. 241 (1964) .................................................28
Hurley v. Irish-American Gay, Lesbian, and
Bisexual Group of Boston, Inc.,
515 U.S. 557 (1995) .................................................12
iii
TABLE OF AUTHORITIES—Continued
Page
In re Complaint of Syracuse Peace Council against
Television Station WTVH Syracuse, New York,
2 F.C.C. Rcd. 5043 (1987) ........................................31
Ison v. Madison Local Sch. Dist. Bd. of Educ.,
3 F.4th 887 (6th Cir. 2021) ......................................21
Katzenbach v. McClung,
379 U.S. 294 (1964) .................................................28
Manhattan Cmty. Access Corp. v. Halleck,
139 S. Ct. 1921 (2019) ....................................... 12, 13
Masterpiece Cakeshop v. Colo. Civ. R. Comm’n,
138 S. Ct. 1719 (2018) ........................................... 7, 8
Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974) ........................................... 10, 31
Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n,
475 U.S. 1 (1986) .....................................................13
Packingham v. North Carolina,
582 U.S. 98 (2017) ........................................... 3, 4, 32
Pleasant Grove City v. Summum,
555 U.S. 460 (2009) .................................................20
PruneYard Shopping Center v. Robins,
447 U.S. 74 (1980) ...................................................15
Recording Indus. Ass’n of Am. v.
Diamond Multimedia Sys.,
180 F.3d 1072 (9th Cir. 1999) .................................33
Reno v. ACLU,
521 U.S. 844 (1997) ............................................... 4, 5
iv
TABLE OF AUTHORITIES—Continued
Page
Rumsfeld v. Forum for Academic and
Institutional Rights, Inc.,
547 U.S. 47 (2006) ...................................................14
Shurtleff v. City of Boston,
142 S. Ct. 1583 (2022) .................................... 20, 21
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ........................................... 32, 33
Thornhill v. Alabama,
310 U.S. 88 (1940) ...................................................30
TikTok Inc. v. Trump,
490 F. Supp. 3d 73 (D.D.C. 2020) ................ 16, 27, 29
TikTok Inc. v. Trump,
507 F. Supp. 3d 92 (D.D.C. 2020) ............................16
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) .................................................13
Turner Broad. Sys., Inc. v. FCC,
520 U.S. 180 (1997) .................................................13
Twitter, Inc. v. Taamneh,
143 S. Ct. 1206 (2023) ..................................10, 16-18
W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ...................................................3
Zauderer v. Office of Disciplinary Counsel of
Supreme Court,
471 U.S. 626 (1985) ...................................................5
v
TABLE OF AUTHORITIES—Continued
Page
STATUTES
28 U.S.C. § 4102(a) ......................................................26
28 U.S.C. § 4102(c) ......................................................26
47 U.S.C. § 230 ...................................................... 10, 26
47 U.S.C. § 315 ............................................................31
50 U.S.C. § 1702(b)(1) .................................................16
50 U.S.C. § 1702(b)(3) .................................................16
Fla. Stat. § 501.2041(2)(b) ............................................2
Fla. Stat. § 501.2041(2)(c).............................................2
Fla. Stat. § 501.2041(2)(f ) ............................................2
Tex. Civ. Prac. & Rem. Code § 143A.001 ......................2
OTHER AUTHORITIES
Adam Satariano, Illicit Content on Elon Musk’s
X Draws E.U. Investigation, N. Y. TIMES (Dec.
18, 2023), https://bit.ly/48G6Bqt.............................26
Alan Z. Rozenshtein, Silicon Valley’s Speech:
Technology Giants and the Deregulatory First
Amendment, 1 J. FREE SPEECH L. 337 (2021) ...........7
Brendan Carr & Nathan Simington, The First
Amendment Does Not Prohibit the Government
from Addressing Big Tech Censorship, YALE J.
ON REG. BLOG (Jan. 11, 2024), https://perma.
cc/J59F-Z2QW .........................................................28
vi
TABLE OF AUTHORITIES—Continued
Page
Chrissy Clark, Parent Group Alleges Facebook
Censors Its Harmless Posts In Letter To Mark
Zuckerberg, DAILY CALLER (Jan. 24, 2022),
https://bit.ly/3IwWbMV ..........................................24
Eugene Volokh, Treating Social Media Like
Common Carriers? 1 J. FREE SPEECH L. 377
(2021) .......................................................................11
Eugene Volokh, Video: Whether Social Media
Platforms Should Be Treated Like Common
Carriers, CATH. LAW: INAUGURAL SEIGENTHALER
DEBATE (Feb. 16, 2022), https://youtu.be/
7fnLvXWno5I ..........................................................20
Facebook, Terms of Service: 1. The services we
provide (July 26, 2022), https://www.facebook.com/
legal/terms (last visited Jan. 10, 2024) ..................17
Jeff Horvitz, Facebook Says Its Rules Apply to
All. Company Documents Reveal a Secret Elite
That’s Exempt, WALL ST. J. (Sept. 13, 2021),
https://on.wsj.com/3tBbvBk ....................................25
LinkedIn, User Agreement, § 3.3 (Feb. 1, 2022),
https://www.linkedin.com/legal/user-agreement
#rights (last visited Jan. 11, 2024) .........................18
Rachel Lee, Prudence Luttrel, Matthew Johnson,
and John Garnaut, TikTok, ByteDance, and
their Ties to the Chinese Communist Party,
Submission to the Senate Select Committee
on Foreign Interference through Social Media
(Australia) (March 14, 2023), https://perma.
cc/J36Q-PX2U .........................................................27
vii
TABLE OF AUTHORITIES—Continued
Page
Thomas Barrabi, Facebook restores conservative
book publisher’s account after ‘error.’ N. Y.
POST (Jan. 4, 2022), https://bit.ly/3puFHgK ........25
Tiffany Justice & Tina Descovich, Open Letter
to Mark Zuckerberg (Jan. 24, 2022), https://
perma.cc/DT3M-U6KW ...........................................22
TikTok Suspends a Film on Jimmy Lai, WALL
ST. J. (May 3, 2023), https://bit.ly/3S7Noa2 ...........27
X, Defending and respecting the rights of people
using our service, https://help.twitter.com/en/
rules-and-policies/defending-and-respectingour-users-voice (last visited Jan. 11, 2024) ............18
X, Our approach to policy development and
enforcement philosophy, https://help.twitter.com/
en/rules-and-policies/enforcement-philosophy
(last visited Jan. 11, 2024) ......................................18
X, Terms of Service: 3. Content on the Services
(Sept. 29, 2023), https://twitter.com/en/tos#update
(last visited Jan. 11, 2024) ......................................17
Yaqiu Wang, Targeting TikTok’s privacy alone
misses a larger issue: Chinese state control,
QUARTZ (Jan. 24, 2020), https://bit.ly/3vNVH3i .......27
YouTube, Community Guidelines, https://www.
youtube.com/howyoutubeworks/policies/communityguidelines/ (last visited Jan. 11, 2024) ...................18
YouTube, Terms of Service: Content on the Service
(last visited Feb. 17, 2022), https://www.you
tube.com/static?template=terms ............................17
viii
TABLE OF AUTHORITIES—Continued
Page
YouTube, Terms of Service: Our service (Dec. 15,
2023), https://www.youtube.com/static?template=
terms (last visited Jan. 10, 2024) ...........................17
1
INTERESTS OF AMICI CURIAE1
Moms for Liberty is a nonprofit organization
whose mission is to organize, educate and empower
parents to defend their parental rights at all levels of
government. Access to social media platforms is crucial
to the Moms’ efforts to attract new members, coordinate their activities, and communicate their messages
to the broader public.
The Institute for Free Speech is a nonpartisan,
nonprofit organization dedicated to the protection of
the First Amendment rights of speech, assembly, press,
and petition. In addition to scholarly and educational
work, the Institute represents individuals and civil society organizations in litigation securing their First
Amendment liberties. Protecting individuals’ ability to
speak about politics and associate for political purposes online advances the Institute’s organizational
mission in fostering free speech and association.
Amici submit this brief to emphasize that the government may protect consumers against viewpoint discrimination in their use of social media platforms, and
to caution the Court against deciding this case in a
manner that would preclude the states from providing
that protection. Amici thus limit their discussion to the
legal doctrines implicated by Section 7 of Texas’s
1
Pursuant to Rule 37.6, amici affirm that no counsel for a
party authored this brief in whole or in part and that no person
other than amici, their members, or counsel has made a monetary
contribution intended to fund the preparation or submission of
this brief.
2
HB20, Tex. Civ. Prac. & Rem. Code § 143A.001, et seq.,
and the “neutrality provisions” of Florida’s S.B. 7072,
Pet. Br., No. 22-277, at 7, Fla. Stat. §§ 501.2041(2)(b),
(c), and (f ).
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
NetChoice is correct about one thing: social media
platforms enjoy the fundamental First Amendment
freedoms of speech and association, including the right
to exercise editorial control over their own speech. The
platforms’ rights, which extend beyond the First
Amendment, include the right to choose what kinds of
services they wish to offer, and the right to empower
their customers to control the type of content with
which they interact.
But laws barring viewpoint discrimination
threaten none of these rights. They do not regulate the
platforms’ own speech, nor do these provisions prevent
the platforms’ users from choosing what speech they
receive and with whom they interact. In addressing
this problem, the states limit only the platforms’ power
to censor the discrete speech of others based on viewpoint—a power the platforms have acquired by electing to become the primary conduit of our social and
political discourse.
There is no question that the platforms use this
power to prevent people from associating with others,
from participating in the political process, and from realizing their potential to help shape our society.
3
Leveraging their control over “the most important
places (in a spatial sense) for the exchange of views,”
Packingham v. North Carolina, 582 U.S. 98, 104 (2017),
a small handful of actors are substituting a world tailored to their own ideologies for the one that people
would organically develop if they could speak freely.
This Court has long rejected the sort of argument
NetChoice offers—that the platforms’ handling of
speech confers a “peculiar constitutional sanctuary”
against otherwise valid laws. Associated Press v.
United States, 326 U.S. 1, 7 (1945).
The states can address this anti-social behavior.
In providing that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion,” W. Va. State Bd.
of Educ. v. Barnette, 319 U.S. 624, 642 (1943), the
First Amendment did not assign such power to Mark
Zuckerberg, or to some faceless programmer at his
company. Or, for that matter, to the Chief Editor of
NetChoice member TikTok’s parent company—who
also heads its internal Chinese Communist Party
committee. The line between “government” and “private” officials is often blurry, if not artificial. Indeed,
the law has long recognized that private actors, no
less than government officials, can frustrate people’s
ability to function in a free society—and that the
state’s curtailment of such threats from private
power promotes rather than infringes on individual
liberty.
And while the states may sometimes stumble in
calibrating their response to social media censorship,
4
this Court should preserve some leeway for efforts to
strike the proper balance. Above all, this Court should
continue to “exercise extreme caution” before approving restrictions on social media access, Packingham,
582 U.S. at 105, whatever their source. This policy is
consistent with the Court’s longstanding preference
to give the states a fair opportunity to address difficult new challenges. And its wisdom is confirmed by
the courts’ experience in favoring consumer access in
battles over emerging technologies. The states may
not immediately find the perfect solution to this problem, but the First Amendment does not cement a
viewpoint censorship regime for the modern public
square.
---------------------------------♦---------------------------------
ARGUMENT
I.
The First Amendment’s application to the
internet does not sanction whatever social
media platforms wish to do.
These cases would be exceedingly simple were the
Court to accept NetChoice’s primary assertion: that
the states are powerless to address the platforms’
viewpoint censorship because the compulsion of
speech is generally forbidden, and “there is ‘no basis
for qualifying the level of First Amendment scrutiny
that should be applied’ to speech on the ‘Internet.’ ”
NetChoice Tex. Br. at 13 and 30 (quoting Reno v. ACLU,
521 U.S. 844, 870 (1997)). Q.E.D.
5
The argument is a non-sequitur. Of course “[t]he
First Amendment fully applies to the Internet.” Id. at
30. But if the platforms’ behavior would not be protected in an offline context, replicating that behavior
online would not imbue it with First Amendment protection. The First Amendment fully applies to newspapers, too, yet the government may compel commercial
advertisers to disclose important information even if
they print their ads in the Columbus Citizen Journal,
under the same standard that applies everywhere else.
Zauderer v. Office of Disciplinary Counsel of Supreme
Court, 471 U.S. 626 (1985).
Beyond this logical flaw, NetChoice apparently
conflates social media platforms, a type of online business, with the internet itself. See, e.g., NetChoice Tex.
Br. at 42 (rationale for regulating cable providers “is
‘not appropriate to other speakers’ or media, including
‘the Internet.’ ”) (citing Reno, 521 U.S. at 868-89). But
“the internet” is not a speaker, and no one who speaks
on the internet or provides internet services thereby
becomes “the internet,” melting into it indistinguishably as one with all other internet users. What a putative speaker actually does on the internet determines
the governing legal framework. Acknowledging the unremarkable fact that the First Amendment applies to
the internet does not answer any question in this case,
including the most essential one: whether barring social media platforms from censoring their users on the
basis of viewpoint implicates the platforms’ speech.
It does not.
6
II.
The right to exclude speech belongs to
speakers who craft their own messages, not
to conduits for the transmission of speech
that they neither create nor select.
Social media platforms’ functions, and the problems posed by their dominance of civic life, are novel.
As with all new things, the law first looks to analogies
for guidance. In “platforming” their users’ speech, do
the platforms behave more like newspapers or telephone companies? Web designers or shopping malls?
Parades or law schools?
NetChoice’s guiding principle in approaching
precedent appears simple enough: platforms are just
like every speaker that has ever been held to enjoy a
right to exclude speech, however strained or abstract
the comparison, and they are not at all like any entity
whose exclusion of speech may be regulated. These
arguments, however, “import law developed in very
different contexts into a new and changing environment, and they lack the flexibility necessary to allow
government to respond to very serious practical
problems without sacrificing the free exchange of
ideas the First Amendment is designed to protect.”
Denver Area Educ. Telecomms. Consortium, Inc. v. FCC,
518 U.S. 727, 740 (1996) (plurality op.). “[N]o definitive
choice among competing analogies . . . allows us to declare a rigid single standard, good for now and for all
future media and purposes.” Id. at 741-42.
Though some land closer to the mark, the analogies are all imperfect. “[S]ocial media platforms cannot
7
easily be shoehorned into traditional First Amendment rules based on a simplistic model of platform
‘rights.’ ” Alan Z. Rozenshtein, Silicon Valley’s Speech:
Technology Giants and the Deregulatory First Amendment, 1 J. FREE SPEECH L. 337, 366 (2021).
Rather than try to squeeze this new creature into
a framework established for a different sort of business, this Court may find it more helpful to ask what
aspects of these other entities justified, or would continue to justify today, the decisions made about their
asserted rights to exclude speech.
Considering what the analogous (or not) entities
tend to have in common, the key distinction between
those who have a right to exclude speech and those
who do not is whether the putative speaker acts primarily as a conduit for other people’s speech, or
whether it would publish the speech of others as a
means of expressing its own message.
1. Creative professionals
At one end of the spectrum lie creative professionals working in all mediums, including website designers and custom cakemakers. 303 Creative LLC v.
Elenis, 143 S. Ct. 2298 (2023); Masterpiece Cakeshop v.
Colo. Civ. R. Comm’n, 138 S. Ct. 1719, 1742-45 (2018)
(Thomas, J., concurring in part and concurring in the
judgment).2 These individuals have the right to
2
Although this Court decided Masterpiece Cakeshop on free
exercise of religion grounds, 303 Creative essentially ref lects the
free speech reasoning of Justice Thomas’s Masterpiece concurrence.
8
express themselves as they wish, regardless of
whether they accept compensation for doing so. In affirming that right, this Court did not dispute Colorado’s characterization of Lorie Smith’s business as a
public accommodation, and acknowledged (as did
Smith) that states “are generally free to apply their
public accommodations laws . . . to a vast array of businesses.” 303 Creative, 143 S. Ct. at 2315. But whatever
else a public accommodation law could accomplish,
“the State could not use its public accommodations
statute to deny speakers the right to choose the content of their own messages.” Id. (internal quotation
marks and brackets omitted) (emphasis added).
Web designers and custom cakemakers are in the
business of transmitting “their own messages,” not
those of others. Masterpiece Cakeshop’s Jack Phillips
does not hold his oven door open to the public so that
others can bake cakes of their own design and purpose,
and Lorie Smith is not in the business of disseminating
whatever code the public brings her. Rather, Phillips
and Smith’s customers ask them to produce discrete
works for hire. Unlike social media platforms, they
carefully consider what expressive works they will create, intentionally craft these works’ every element, and
then provide their customers these works of their own
creation and expression—not the works of all comers.
Ignoring such obvious distinctions, NetChoice fancies social media platforms as bespoke web designers,
quoting liberally from 303 Creative in asserting that
each page a social media platform displays is its own
purposeful creative work. NetChoice Tex. Br. at 4. This
9
is quite a stretch. A visit to 303 Creative’s homepage
quickly dispels the notion that Smith’s business bears
any resemblance to Facebook’s. That business, as the
term “platform” suggests, is not creating “Facebook’s
own messages,” but distributing the messages of others. This is self-evident. Nobody mistakes the Moms
for Liberty Dallas chapter’s Facebook page for Meta’s
corporate speech. Billions of people do not visit Facebook seeking Meta Corp.’s views of what they should
hear.
Nor does anyone use Facebook to compel Meta’s
creation or purposeful selection of any specific ideological content, because Meta does not create its users’
speech or select it as part of a conscious effort to communicate any of its own messages. Compelling a human being who expresses her values for a living to
speak in opposition to those values is one thing; asking
a company that expresses no particular message in
serving the public as a speech conduit to refrain from
discriminating against its users’ viewpoints is quite
another.
If, as NetChoice offers, social media platforms publish nothing but an endless collection of expressive
works akin to Lorie Smith’s custom wedding websites,
a telephone company could claim that its censorship of
phone calls would merely create a unique, curated
speech experience on its wires and frequencies. But unlike 303 Creative, a phone company does not create
speech; rather, it connects people by serving as conduit
for their speech. Social media platforms perform a similar function, even if they retain a First Amendment
10
right to offer their own speech on their platforms, including the right to recommend or comment on others’
speech.
2. Newspapers
Reaching beyond the web designer analogy, the
platforms ask to be treated as newspapers, which are
entitled to exclude any speech they’d rather not publish. Miami Herald Publishing Co. v. Tornillo, 418 U.S.
241 (1974). “Compelling editors or publishers to publish that which reason tells them should not be published is what [was] at issue in [Tornillo].” Id. at 256.
But when it comes to bearing the legal obligations of
editors and publishers, the platforms take a different
view—a view with which Congress and this Court correctly agree. 47 U.S.C. § 230; Twitter, Inc. v. Taamneh,
143 S. Ct. 1206 (2023).
As the platforms recognize when it is more convenient for them to do so, they do not function like
newspapers. Again, the familiar distinctions between
those entitled to exclude speech and those who are not:
platforms, unlike newspapers, are primarily speechconduits for others that perform no editorial function,
and whose output is not understood to express some
particular message.
Newspaper readers can rest assured that the paper’s editors approved of everything appearing within
its pages, at least as matters worthy of discussion. A
publication’s description as “All the News That’s Fit to
Print” is a declaration of editorial judgment. But as the
11
Florida district court recognized, “newspapers, unlike
social-media providers, create or select all their content.” Pet.App., No. 22-277, at 85a. Most of the speech
carried by social media platforms is functionally invisible to them, even if algorithms screen some content.
Id.
“[T]he sheer volume and breadth of material users
seek to share” through social media, NetChoice Fl. Br.
at 4, confirms the impossibility of exercising editorial
judgment over the platforms, as well as the essential
fact that the platforms exist to distribute the speech of
others, not their own content. It is precisely that feature which helps to draw in users and allows platforms
to leverage network effects. And it is impossible to survey this endless flood of speech generated by billions of
people and perceive a coherent speech product, akin to
the edition of a newspaper or magazine. See Eugene
Volokh, Treating Social Media Like Common Carriers?
1 J. FREE SPEECH L. 377, 423-428 (2021).
3. Parades, cable systems, and correspondence.
The same two factors—the speakers’ expression of
their own messages, and their creation or deliberate
selection of the speech they wish to preserve against
intrusion—distinguish speakers who enjoy the First
Amendment exclusion right from NetChoice’s constituent platforms.
A social media platform is not a sort-of online parade. In real life, a parade organizer can exclude
12
unwanted viewpoints from its parade because
“[r]ather like a composer, [it] selects the expressive
units of the parade from potential participants, and
though the score may not produce a particularized
message, each contingent’s expression in the [organizer’s] eyes comports with what merits celebration on
that day.” Hurley v. Irish-American Gay, Lesbian, and
Bisexual Group of Boston, Inc., 515 U.S. 557, 574
(1995). A parade organizer is “intimately connected
with the communication advanced” by the parade, and
thus may bar “dissemination of a view contrary to one’s
own” from the event. Id. at 576. Platforms are nothing
like such hosts. They don’t pick content to “mak[e]
some sort of collective point,” id.at 568, even an abstract one like “what merits celebration on [St. Patrick’s] day,” id. at 574. Taken as a whole, parade
participants communicate a message—even if only
that the parade participants fall within the range of
speech relevant to the parade’s theme. All the speech
collected on a social media platform does not communicate any such messages. Indeed, far from presenting a
message of its own, a platform may serve different users very different materials. NetChoice Tex. Br. at 4.
With respect to cable systems, NetChoice errs in
claiming that this Court, in Manhattan Cmty. Access
Corp. v. Halleck, 139 S. Ct. 1921 (2019), “rejected governmental efforts to compel private parties to disseminate speech.” NetChoice Tex. Br. at 1. Halleck, a case
brought by private individuals, held only that cable
systems are not state actors. Indeed, this Court carefully avoided the holding NetChoice attributes to the
13
case: “A distinct question not raised here is the degree
to which the First Amendment protects private entities
such as [cable operators] from government legislation
or regulation requiring those private entities to open
their property for speech by others.” Halleck, 139 S. Ct.
at 1931 n.2 (citing Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622, 636 (1994) (“Turner I”). In Turner I, this Court
held that cable systems enjoy First Amendment protection. But it later upheld a requirement that cable
systems carry some channels against their will. Turner
Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (“Turner
II”). As the Fifth Circuit correctly held, the Turner
cases confirm that viewpoint discrimination bans
would satisfy heightened scrutiny, but this Court need
not get that far because social media platforms are inapposite. They do not pick their users the way that cable systems create a channel lineup, and no message
can be discerned from their “user lineup.”
NetChoice’s least compelling analogy compares
social media platforms to utility bills—communications between a speaker and its clients, from which the
speaker may exclude its critics. Pac. Gas & Elec. Co. v.
Pub. Utils. Comm’n, 475 U.S. 1 (1986). Mailed envelopes are a conduit for no one’s speech but that of the
sender, who composes the entirety of its own message.
4. Law schools and shopping malls
In contrast, this Court has denied a First Amendment exclusion right to putative speakers who hosted
the speech of others. True, under many if not most
14
circumstances, hosts enjoy a First Amendment right to
exclude speech from their private property. See, e.g.,
NetChoice Tex. Br. at 20 (community bulletin boards
and comedy club open-mic nights) (citation omitted).
But a different rule may prevail where the “guest’s”
speech cannot be imputed to the host. Thus, requiring
law schools to open their campuses to military recruiters “does not affect the law schools’ speech, because the
schools are not speaking when they host interviews
and recruiting receptions.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 64
(2006) (“FAIR”). The requirement “is not compelled
speech because the accommodation does not sufficiently interfere with any message of the school.” Id.
Of course, “nothing in FAIR would require schools
to publish military-preferred messages in their law reviews.” NetChoice Tex. Br. at 30. But law reviews, like
newspapers, are carefully edited, expressive and unified speech products. FAIR did require schools to “send
e-mails and post [bulletin board] notices on behalf of
the military” to the same extent that they transmitted
such speech for others. FAIR, 547 U.S. at 61-62. Likewise, this Court rejected a shopping mall’s First
Amendment right to exclude visitors’ political speech,
primarily because the mall was open to the public and
the Court believed that pamphleteers and canvassers’
speech “will not likely be identified with those of the
15
owner.” PruneYard Shopping Center v. Robins, 447 U.S.
74, 87 (1980).3
5. Social media platforms—when seeking
to avoid liability
Since the right to exclude speech turns on whether
the putative speaker is expressing its own message,
and whether it carefully selects any elements comprising that message, the most relevant precedent to consider when asking whether social media platforms
have this right is precedent concerning social media
platforms—when they are called to account for this alleged speech of theirs.
Notwithstanding the platforms’ claim of an unrestricted right to “curate” their users’ expression,
“they’ve told courts repeatedly that they merely serve
as ‘conduits’ for other parties’ speech and use ‘neutral
tools’ to conduct any processing, filtering, or arranging
that’s necessary to transmit content to users.”
Pet.App., No. 22-555, at 52 (footnote omitted). And
courts typically accept these claims. “To be sure, TikTok . . . is primarily a conduit of ‘informational
3
PruneYard should be reconsidered in an appropriate case
because it erred in conceiving of shopping malls as speech conduits. Shopping malls are meant to provide a shopping experience, and the owner is entitled to calibrate the environment to
that end. Outside speech displaces and recontextualizes any messaging the mall’s ownership may want to express, including one
of negative space, and might well be imputed to the mall. But
PruneYard erred in misapplying First Amendment principles, not
in its understanding that the case would turn on a distinction
between the host’s own message and that of its guests.
16
materials.’ In that sense, it is (among other things) a
‘medium of transmission.’ ” TikTok Inc. v. Trump, 490
F. Supp. 3d 73, 81 (D.D.C. 2020) (TikTok exempt from
regulation as it transmits “information or informational materials” per 50 U.S.C. § 1702(b)(3)). “TikTok
surely derives more value as a result of facilitating
communications than 1977-era telephone networks
and postal services. But that is a difference in degree,
not in kind.” TikTok Inc. v. Trump, 507 F. Supp. 3d 92,
108 (D.D.C. 2020) (affording TikTok exemption of 50
U.S.C. § 1702(b)(1) for “any postal, telegraphic, telephonic, or other personal communication, which does
not involve a transfer of anything of value”).
The platforms prevailed on such arguments before
this Court just last term. Sued for aiding and abetting
the terrorism sponsored on their platforms,
NetChoice’s members evaded liability “because the
only affirmative ‘conduct’ [they] allegedly undertook
was creating their platforms and setting up their algorithms to display content relevant to user inputs and
user history.” Taamneh, 143 S. Ct. at 1226. This Court
had “[no] reason to think that defendants selected or
took any action at all with respect to ISIS’ content
(except, perhaps, blocking some of it).” Id. (footnote
omitted).
It wasn’t their speech. They had nothing to do with
it.
“Indeed, there is not even reason to think that [the
companies] carefully screened any content before allowing users to upload it onto their platforms. . . . The
17
mere creation of those platforms, however, is not culpable.” Id. In this regard, this Court saw the platforms
as being no different than “cell phones, email, or the
internet generally. Yet, we generally do not think that
internet or cell service providers incur culpability
merely for providing their services to the public writ
large.” Id.
What the platforms tell courts in hoping to avoid
liability for their hosted speech aligns with their messaging to consumers in enticing them to create speech
for platform distribution. The platforms exist to distribute user speech,4 for which they are not responsible,5 and guidelines on platform use are politically
4
YouTube “provides a forum for people to connect . . . and
acts as a distribution platform for original content creators.”
YouTube, Terms of Service: Our service (Dec. 15, 2023),
https://www.youtube.com/static?template=terms (last visited
Jan. 10, 2024). Facebook’s mission is to “[c]onnect you with people and organizations you care about,” and to “[e]mpower you to
express yourself and communicate about what matters to you.”
Facebook, Terms of Service: 1. The services we provide (July 26,
2022), https://www.facebook.com/legal/terms (last visited Jan. 10,
2024). The site’s “personalization” is user-generated, based on
“the connections you make, the choices and settings you select,
and what you share and do on and off our Products.” Id.
5
“All Content is the sole responsibility of the person who
originated such Content. We may not monitor or control the
Content posted via the Services and, we cannot take responsibility for such Content.” X, Terms of Service: 3. Content on the Services (Sept. 29, 2023), https://twitter.com/en/tos#update (last
visited Jan. 11, 2024). “Content is the responsibility of the person or entity that provides it to the Service.” YouTube, Terms of
Service: Content on the Service (last visited Feb. 17, 2022),
https://www.youtube.com/static?template=terms. “LinkedIn
generally does not review content provided by our Members
18
neutral.6 One cannot on the one hand claim to be the
editor of a coherent speech product, and on the other
hand disclaim all responsibility for that content.
Taamneh correctly understood that the platforms
are largely passive conduits for the speech of others.
When they distribute their users’ speech, they do not
thereby endorse or adopt it in any way. Platforms are
not a sort-of Schrodinger’s cat, existing simultaneously
in two dimensions as both publishers and conduits,
their true nature to be established only when courts
open the box to discover whether they’re taking initiative or playing defense. They should be satisfied with
their success to date.
And now, the platforms “must take the bitter with
the sweet.” Bailey v. United States, 568 U.S. 186, 206
(2013) (Scalia, J., concurring). If the speech is not
or others.” LinkedIn, User Agreement, § 3.3 (Feb. 1, 2022),
https://www.linkedin.com/legal/user-agreement#rights (last visited Jan. 11, 2024).
6
“Community Guidelines” apply “to everyone equally—regardless of the subject or the creator’s background, political
viewpoint, position, or affiliation.” YouTube, Community Guidelines, https://www.youtube.com/howyoutubeworks/policies/communityguidelines/ (last visited Jan. 11, 2024). “Defending and respecting
the user’s voice is one of our core values at X.” X, Defending and
respecting the rights of people using our service, https://help.
twitter.com/en/rules-and-policies/defending-and-respecting-ourusers-voice (last visited Jan. 11, 2024). “We empower people to
understand different sides of an issue and encourage dissenting
opinions and viewpoints to be discussed openly.” X, Our approach
to policy development and enforcement philosophy, https://help.
twitter.com/en/rules-and-policies/enforcement-philosophy (last
visited Jan. 11, 2024).
19
theirs for liability purposes, then it is not theirs to censor for viewpoint, either, and the government can protect their users, the true speakers, from platform
disruption.
III. Prohibiting viewpoint discrimination does
not impact the platforms’ First Amendment
rights.
While the platforms lack a First Amendment interest in the speech of others, they retain full First
Amendment rights in their own expression. But the
viewpoint discrimination prohibitions do not reach the
platforms’ own expressive website elements or speech,
or the platforms’ provision or exclusion of speech as requested by the platforms’ users. In barring viewpoint
discrimination, the states do not regulate Facebook’s
page format or X’s logo, any more than the government
regulates a cable operator’s channel guide or whatever
logo Western Union would print on its telegrams were
it still in that business. Nor do the states interfere with
the platforms’ familiar filtering, following, friending,
blocking, protecting, subscription, and search features
that allow users to curate, to control what they see and
share.
The states do not ban content curation; they
merely require that it be done according to known
rules, in a viewpoint-neutral manner, and with notice.
Enforcing the laws’ core provisions will not open the
floodgates to unwanted content overriding user preferences or interfere with the platforms’ presentation of
20
material according to the nature and limits of their
medium. Under the states’ approaches, the platforms
can moderate content, but they can’t do it in a black
box.
Treating big platforms as common carriers is analogizable to existing jurisprudence on limited public
forums, where content-based restrictions are allowed
so long as they are reasonably related to the purposes
of the forum but viewpoint discrimination is barred.
See Pleasant Grove City v. Summum, 555 U.S. 460, 470
(2009); Good News Club v. Milford Cent. Sch., 533 U.S.
98, 106-07 (2001) (state may reserve limited public forum for certain groups and topics but may not discriminate on basis of viewpoint); see also Eugene Volokh,
Video: Whether Social Media Platforms Should Be
Treated Like Common Carriers, CATH. LAW: INAUGURAL
SEIGENTHALER DEBATE (Feb. 16, 2022), https://youtu.be/
7fnLvXWno5I, timestamp 1:12:43-1:14:36 (suggesting
analogy of social media platforms to limited public
fora).
Indeed, barring the platforms from engaging in
viewpoint discrimination does not impact their First
Amendment rights any more than barring viewpoint
discrimination in a public forum impacts government
speech. No one questions that a city’s flying of its flag
over city hall is government speech, communicating
the government’s message. But when Boston opened a
flagpole to public use, its “lack of meaningful involvement in the selection of flags or the crafting of their
messages [led this Court] to classify the flag raisings
as private, not government, speech.” Shurtleff v. City
21
of Boston, 142 S. Ct. 1583, 1593 (2022). The “Christian
flag,” though flown on Boston’s flagpole, was nonetheless not Boston’s speech, and the city could not discriminate against its viewpoint.
To be sure, big platforms are not state actors (unless they censor at the behest of the government), but
the point here is that there already exists an operable
jurisprudential framework enabling forum operators
to impose reasonable limits on content while remaining viewpoint neutral within those categories. That
there may be some line drawing involved, doesn’t prevent that framework from allowing courts (and lawyers) to effectively evaluate the public comment
periods of city council meetings or school board meetings. See, e.g., Ison v. Madison Local Sch. Dist. Bd. of
Educ., 3 F.4th 887, 893 (6th Cir. 2021). Like many limited public fora, social media platforms generally cast
a wide net for speakers (users) and only exclude some
nonconforming content. Indeed, their networks’ values
largely depend on the length and breadth of the nets
they cast.
Sometimes, and in some ways, NetChoice’s members speak through their platforms. But mostly, they
just facilitate expression by others. That conduit function, not the platforms’ expression, is what the states
regulate in banning viewpoint discrimination. And
just as “[f ]reedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests,”
Associated Press, 326 U.S. at 20 (footnote omitted), any
First Amendment interests that NetChoice’s members
might have in operating social media platforms does
22
not entitle them to attack their users’ speech and association.
IV. The platforms’ viewpoint discrimination
seriously disrupts the political process.
The platforms’ content-moderation decisions often
defy common sense; rules are unknown and haphazardly applied, and political bias often seems determinative. The problem’s full exposition lies well-beyond
the word limits, and this brief ’s scope, but some examples warrant discussion—as do some underappreciated aspects of the threat to American political
discourse.
Amicus Moms for Liberty had thrived by recruiting and organizing on Facebook when its ideological
and political opponent, the National Education Association, began lobbying the platform to censor the Moms’
content as “misinformation.” Tiffany Justice & Tina
Descovich, Open Letter to Mark Zuckerberg (Jan. 24,
2022), https://perma.cc/DT3M-U6KW. Soon, Facebook
issued 22 Moms chapter groups notifications of community standards violations, and disabled the chapters “for posting basic information about local
government operations such as school board meeting
times, or questions about student textbooks.” Id.
These are the sorts of posts that triggered deplatforming:
23
24
Chrissy Clark, Parent Group Alleges Facebook Censors
Its Harmless Posts In Letter To Mark Zuckerberg, DAILY
CALLER (Jan. 24, 2022), https://bit.ly/3IwWbMV. Facebook restored the Moms’ access following public outcry—this time. Similarly, Facebook banned Heroes of
Liberty, a conservative publisher of children’s
25
biographies featuring figures such as President
Reagan and economist Thomas Sowell, from advertising on the platform, but lifted the ban when it drew
negative attention. Thomas Barrabi, Facebook restores
conservative book publisher’s account after ‘error.’ N. Y.
POST (Jan. 4, 2022), https://bit.ly/3puFHgK. At the
time, Facebook did not explain why it had incorrectly
labeled harmless childrens’ book ads to be “Low Quality or Disruptive Content.” Id.
On the other hand, the platform “shields millions
of VIP users from the company’s normal enforcement
process,” allowing favored people to violate the company’s content rules with impunity. Jeff Horvitz, Facebook Says Its Rules Apply to All. Company Documents
Reveal a Secret Elite That’s Exempt, WALL ST. J. (Sept.
13, 2021), https://on.wsj.com/3tBbvBk. Online, the elite
really do live by a different set of rules. And apparently,
incumbent office holders are exempt from rules applied
to challengers: “While the [privilege] program included
most government officials, it didn’t include all candidates for public office, at times effectively granting incumbents in elections an advantage over challengers.”
Id.
At times, government actors influence or even direct platform decisions to censor content that they find
politically disagreeable, a problem this Court will address in Murthy v. Missouri, No. 23-411. Viewpoint censorship by ostensibly private actors poses its own kind
of challenge. A (truly) private company might display
“extraordinary firmness” in resisting government pressure, perhaps even relishing such a fight owing to a
26
deep commitment to free speech principles. But when
those who control the primary nodes of communications enthusiastically censor their political and ideological opponents, only a nondiscrimination rule can
offer practical hope for the silenced. Viewpoint discrimination bans may also help avert the type of egregious
jawboning (and worse) that permeates the Murthy record. Such laws could stiffen the spines of platform operators, who could resist officials’ improper censorship
requests on grounds that they solicit unlawful acts.
A nondiscrimination rule might also be the only
countervailing force against the imposition of foreign
speech regulations on platform speech that would violate the First Amendment if attempted by Congress.
However this Court might rule in Murthy, protecting
ostensibly private discrimination would enable the
European Union to ban all manner of First Amendment-protected content if platforms decide it’s simply
easier or more profitable to cave in to its demands.
Adam Satariano, Illicit Content on Elon Musk’s X
Draws E.U. Investigation, N. Y. TIMES (Dec. 18, 2023),
https://bit.ly/48G6Bqt.7
Moreover, the line between government and private power may be illusory. NetChoice member TikTok
denies “remov[ing] or promot[ing] content on behalf of
the Chinese government,” but its actions restricting
7
Congress has recognized the threat that foreign legal systems pose to First Amendment freedoms, immunizing Americans
from libel tourism. 28 U.S.C. § 4102(a). That immunity extends
the reach of platforms’ immunity under Section 230 of the Communications Act. 28 U.S.C. § 4102(c).
27
material critical of China raise doubts. TikTok Suspends a Film on Jimmy Lai, WALL ST. J. (May 3, 2023),
https://bit.ly/3S7Noa2. The previous Administration
regulated TikTok as a foreign threat, alleging that its
corporate parent, ByteDance, had (among other
things) “placed over 130 CCP [Chinese Communist
Party] committee members in management positions
throughout the company.” TikTok, 490 F. Supp. 3d at
78 (citation omitted). Indeed, one person, Zhang Fuping, apparently serves as both ByteDance’s Chief Editor and Party Secretary of the company’s internal CCP
committee. See Rachel Lee, Prudence Luttrel, Matthew
Johnson, and John Garnaut, TikTok, ByteDance, and
their Ties to the Chinese Communist Party, Submission
to the Senate Select Committee on Foreign Interference through Social Media (Australia) (March 14,
2023) at 49, https://perma.cc/J36Q-PX2U. This official
has declared “that ByteDance should ‘transmit the correct political direction, public opinion guidance and
value orientation into every business and product line
[and] use values to guide algorithms.’ ” Id. at 58 (footnote omitted); see also Yaqiu Wang, Targeting TikTok’s
privacy alone misses a larger issue: Chinese state control, QUARTZ (Jan. 24, 2020), https://bit.ly/3vNVH3i.
To be sure, limiting undue foreign influence is not
the states’ primary responsibility. But the constitutional rules made here will be far-reaching. It warrants
some pause that awarding NetChoice an absolute,
constitutional right to censor online speech might well
afford foreign governments, acting through ostensibly
28
private companies, the very power that the First
Amendment forbids to Congress.
Regardless of its source, or its public, private, domestic or foreign nature, viewpoint censorship of social
media platforms inflicts tremendous individual and societal harm. A user who is booted off a platform, or who
routinely has her content suppressed for ideological
reasons, often cannot just switch platforms without
losing valuable connections, reach, and content. She is
unlike a reader who may select a different publication
at a newsstand. Deplatformed users are effectively excluded from vast information networks (including government officials who use social media to interact with
the public), and that exclusion directly impacts their
ability to speak, consume the speech of others, and participate in civic life.
“[T]he decision by even a single social media company to ban or censor a speaker can effectively exclude
that person from participating in political discourse.”
Brendan Carr & Nathan Simington, The First Amendment Does Not Prohibit the Government from Addressing Big Tech Censorship, YALE J. ON REG. BLOG (Jan.
11, 2024), https://perma.cc/J59F-Z2QW. In other contexts, the law has long recognized that the impermissible denial of a single choice among other potential
options is unacceptable. See Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241 (1964); Katzenbach
v. McClung, 379 U.S. 294 (1964). And while in theory,
restaurants and motels have substitutes, there is no
substitute for access to that large portion of the population that is only to be found on a particular network.
29
Telling wrongly deplatformed speakers to “find another Facebook” is no better answer than that which
the law properly rejects in the public accommodation
context. We don’t expect people to start their own motel
chains or bus companies in response to bias, and governments appropriately regulate access in those areas.
Beyond its impact on individuals, the threat such
exclusion poses to otherwise viable social and political
movements is plain. Cf. TikTok, 490 F. Supp. 3d at 83
(acknowledging governmental interest in “preventing
China from . . . skewing content on TikTok”). When
“everyone” is on a platform, that platform is where
speakers are likely to find those who are not yet won
over to their views or are even aware of their issues.
Moreover, in the case of political campaigns and
speech, timing is often crucial. Banning or suppressing
platform users’ political speech during election season, even if only for a limited time period, might sway
the outcome of an election. Similarly, preventing someone from raising campaign contributions on Facebook,
or another platform, can hobble candidates and may
sometimes protect incumbents.
Social media platforms should not act as sotto voce
king-makers, by determining access to their vast networks.
V.
Prohibiting platform viewpoint discrimination is consistent with free speech.
Provisions forbidding social media platforms from
discriminating against their users based on viewpoint
30
are not merely constitutional. They are consistent with
the First Amendment interests in promoting more—
and more diverse—speech.
“The First Amendment, in particular, serves significant societal interests.” First Nat’l Bank v. Bellotti,
435 U.S. 765, 776 (1978). These include “the liberty to
discuss publicly and truthfully all matters of public
concern,” which “must embrace all issues about which
information is needed or appropriate to enable the
members of society to cope with the exigencies of their
period.” Id. (quoting Thornhill v. Alabama, 310 U.S. 88,
101-02 (1940)). “[T]he concept that government may
restrict the speech of some elements of our society in
order to enhance the relative voice of others is wholly
foreign to the First Amendment.” Buckley v. Valeo, 424
U.S. 1, 48-49 (1976) (per curiam). More speakers, not
fewer, advance the First Amendment’s values. Rejecting an “antidistortion” rationale for the regulation of
corporate speech, this Court overturned a censorship
regime “vast in its reach” that “suppress[ed] the speech
of manifold corporations . . . prevent[ing] their voices
and viewpoints from reaching the public. . . .” Citizens
United v. FEC, 558 U.S. 310, 354 (2010).
Indeed, when previous technological and social
developments rendered various “modes of communication indispensable instruments of effective political
speech,” this Court recognized that campaign expenditure limits “represent[ed] substantial rather than
merely theoretical restraints on the quantity and diversity of political speech.” Buckley, 424 U.S. at 19. The
restrictions failed First Amendment review, as they
31
“appear[ed] to exclude all citizens and groups [with
few exceptions] from any significant use of the most
effective modes of communication.” Id. at 19-20 (footnotes omitted).
Buckley’s condemnation of expenditure limits
echoes the states’ logic in prohibiting platform viewpoint discrimination. Today, social media platforms
are the newly “indispensable instruments of effective
political speech.” Platform viewpoint censorship substantially restrains the quantity and diversity of political speech, and excludes many citizens from “any
significant use of the most effective modes of communication.” The states’ efforts to address this problem
does not violate First Amendment principles—it advances them.
And regulations which do no more than preserve
equal access for the dissemination of viewpoints are
permissible. For example, Congress requires that
broadcasters who wish to carry advertising for political
candidates offer such access equally to all candidates,
without discrimination or censorship. 47 U.S.C. § 315.
But if NetChoice prevails here, it would be difficult to
see how such provisions could survive a First Amendment challenge.8
8
Section 315 is distinguishable from the so-called “Fairness
Doctrine,” which suffers from the same problems as Tornillo’s illfated right of reply. See In re Complaint of Syracuse Peace Council
against Television Station WTVH Syracuse, New York, 2 F.C.C.
Rcd. 5043 (1987), aff’d on other grounds, 867 F.2d 654 (D.C. Cir.
1989).
32
VI. States should be given the space to solve
the problem of social media censorship.
Just as “the Court must exercise extreme caution
before suggesting that the First Amendment provides
scant protection for access to vast networks in [the
internet],” Packingham, 582 U.S. at 105, it should be
at least as cautious before holding that the First
Amendment bars all state efforts to provide that protection.
Social media censorship severely impairs many
Americans from participating in civic society. Left unchecked, this censorship will change election results; it
will extinguish some political movements and allow
others to grow unquestioned. “This Court has long recognized the role of the States as laboratories for devising solutions to difficult legal problems.” Ariz. State
Legis. v. Ariz. Indep. Redistricting Comm’n, 576 U.S.
787, 817 (2015) (internal quotation marks omitted).
Even if it determines that portions of the Florida and
Texas laws have overstepped, this Court should be
cautious not to pre-empt all future efforts to combat
viewpoint discrimination by social media platforms.
History shows that when courts come to a technological crossroads, the better course is to side with individual freedom. Although the substantive legal
issues in these earlier cases were quite different from
those presented here, the platforms’ effort to exert total control over users’ platform speech echoes the
movie studios’ attacks on VCRs, Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417 (1984), and
33
the recording industry’s campaign against the MP3
player, Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., 180 F.3d 1072 (9th Cir. 1999) (“RIAA”). It
merits reflecting, from the vantage point of 2024, that
this Court protected Americans’ ability to purchase
and use videocassette recorders for the purpose of
time-shifting by a mere 5-4 vote. A different outcome
in Sony would have stunted the VCR, and with it, the
development of a home video rental market. And had
RIAA held that an MP3 player is a “digital audio recording device” within the meaning of the Audio Home
Recording Act of 1992, the iPod could not have developed as it did, with all that implies for how people consume media, and the development of subsequent
devices, such as smartphones and tablets.
The Sony and RIAA courts could not have imagined the technological evolutions that they unleashed.
In one sense, these cases merely interpreted and applied statutory language, and the credit goes to Congress for not legislating away the future. But the
courts’ rationales in both cases favored consumer
freedom over claims of proprietary control over information. Today’s media landscape would have been unimaginable had either of these cases been decided
differently. There is no telling what society is losing because countless viewpoints are shut out of social media
platforms.
---------------------------------♦---------------------------------
34
CONCLUSION
The First Amendment does not prohibit the states
from barring viewpoint discrimination by social media
platforms.
Respectfully submitted.
ALAN GURA
Counsel of Record
ENDEL KOLDE
INSTITUTE FOR FREE SPEECH
1150 Connecticut Ave., N.W.
Suite 801
Washington, DC 20036
(202) 301-3300
agura@ifs.org
Counsel for Amici Curiae
JANUARY 23, 2024
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.