Case: 21-51178 Document: 00516474571 Page: 1 Date Filed: 09/16/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 16, 2022
No. 21-51178 Lyle W. Cayce
Clerk
NetChoice, L.L.C., a 501(c)(6) District of Columbia organization doing
business as NetChoice; Computer Communications
Industry Association, a 501(c)(6) non-stock Virginia Corporation
doing business as CCIA,
Plaintiffs—Appellees,
versus
Ken Paxton, in his official capacity as Attorney General of Texas,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:21-cv-840
Before Jones, Southwick, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge: *
A Texas statute named House Bill 20 generally prohibits large social
media platforms from censoring speech based on the viewpoint of its speaker.
The platforms urge us to hold that the statute is facially unconstitutional and
hence cannot be applied to anyone at any time and under any circumstances.
*
Judge Jones joins all but Part III.E and Part V.B.3 of this opinion.
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In urging such sweeping relief, the platforms offer a rather odd
inversion of the First Amendment. That Amendment, of course, protects
every person’s right to “the freedom of speech.” But the platforms argue
that buried somewhere in the person’s enumerated right to free speech lies a
corporation’s unenumerated right to muzzle speech.
The implications of the platforms’ argument are staggering. On the
platforms’ view, email providers, mobile phone companies, and banks could
cancel the accounts of anyone who sends an email, makes a phone call, or
spends money in support of a disfavored political party, candidate, or
business. What’s worse, the platforms argue that a business can acquire a
dominant market position by holding itself out as open to everyone—as
Twitter did in championing itself as “the free speech wing of the free speech
party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist
of “the modern public square,” Packingham v. North Carolina, 137 S. Ct.
1730, 1737 (2017), Twitter unapologetically argues that it could turn around
and ban all pro-LGBT speech for no other reason than its employees want to
pick on members of that community, Oral Arg. at 22:39–22:52.
Today we reject the idea that corporations have a freewheeling First
Amendment right to censor what people say. Because the district court held
otherwise, we reverse its injunction and remand for further proceedings.
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I.
A.
This case involves HB 20, a Texas statute that regulates large social
media platforms. 1 The law regulates platforms 2 with more than 50 million
monthly active users (“Platforms”), such as Facebook, Twitter, and
YouTube. Tex. Bus. & Com. Code § 120.002(b). In enacting HB 20,
the Texas legislature found that the Platforms “function as common carriers,
are affected with a public interest, are central public forums for public debate,
and have enjoyed governmental support in the United States.” It further
found that “social media platforms with the largest number of users are
common carriers by virtue of their market dominance.”
Two sections of HB 20 are relevant to this suit. First is Section 7,
which addresses viewpoint-based censorship of users’ posts. Section 7
provides:
A social media platform may not censor a user, a user’s
expression, or a user’s ability to receive the expression of
another person based on:
1
The full text of HB 20 can be viewed here: https://perma.cc/9KF3-LEQX. The
portions of HB 20 relevant to this lawsuit are codified at Texas Business and
Commerce Code §§ 120.001–151 and Texas Civil Practice and Remedies
Code §§ 143A.001–08.
2
HB 20 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.” Tex. Bus. & Com. Code § 120.001(1). The
definition expressly excludes internet service providers, email providers, and any “online
service, application, or website” that “consists primarily of news, sports, entertainment,
or other information or content that is not user generated but is preselected by the
provider,” and “for which any chat, comments, or interactive functionality is incidental to,
directly related to, or dependent on the provision of [that] content.” Id. § 120.001(1)(A)–
(C).
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(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user’s expression
or another person’s expression; or
(3) a user’s geographic location in this state or any part
of this state.
Tex. Civ. Prac. & Rem. Code § 143A.002(a). “Censor” means “to
block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal
access or visibility to, or otherwise discriminate against expression.” Id.
§ 143A.001(1). For Section 7 to apply, a censored user must reside in Texas,
do business in Texas, or share or receive expression in Texas. Id.
§ 143A.004(a)–(b).
This prohibition on viewpoint-based censorship contains several
qualifications. Section 7 does not limit censorship of expression that a
Platform “is specifically authorized to censor by federal law”; expression
that “is the subject of a referral or request from an organization with the
purpose of preventing the sexual exploitation of children and protecting
survivors of sexual abuse from ongoing harassment”; expression that
“directly incites criminal activity or consists of specific threats of violence
targeted against a person or group because of their race, color, disability,
religion, national origin or ancestry, age, sex, or status as a peace officer or
judge”; or “unlawful expression.” Id. § 143A.006.
Finally, Section 7 provides a narrow remedial scheme. If a Platform
violates Section 7 with respect to a user, that user may sue for declaratory and
injunctive relief and may recover costs and attorney’s fees if successful. Id.
§ 143A.007. The Attorney General of Texas may also sue to enforce Section
7 and may recover attorney’s fees and reasonable investigative costs if
successful. Id. § 143A.008. Damages are not available.
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The other relevant provision of HB 20 is Section 2. It imposes certain
disclosure and operational requirements on the Platforms. These
requirements fall into three categories. First, Platforms must disclose how
they moderate and promote content and publish an “acceptable use policy.”
Tex. Bus. & Com. Code §§ 120.051–52. This policy must inform users
about the types of content allowed on the Platform, explain how the Platform
enforces its policy, and describe how users can notify the Platform of content
that violates the policy. Id. § 120.052(b).
Platforms must also publish a “biannual transparency report.” Id.
§ 120.053. This report must contain various high-level statistics related to the
Platform’s content-moderation efforts, including the number of instances in
which the Platform was alerted to the presence of policy-violating content;
how the Platform was so alerted; how many times the Platform acted against
such content; and how many such actions were successfully or unsuccessfully
appealed. See ibid.
Last, Platforms must maintain a complaint-and-appeal system for
their users. See id. §§ 120.101–04. When a Platform removes user-submitted
content, it must generally explain the reason to the user in a written statement
issued concurrently with the removal. Id. § 120.103(a). It also must permit
the user to appeal the removal and provide a response to the appeal within 14
business days. Id. § 120.104. Section 2 includes various exceptions to these
notice-and-appeal requirements. See id. § 120.103(b).
Only the Texas Attorney General may enforce Section 2. Id.
§ 120.151. The Attorney General may seek injunctive relief but not damages.
Ibid.
B.
NetChoice and the Computer & Communications Industry
Association are trade associations representing companies that operate
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Platforms covered by HB 20. They sued the Attorney General of Texas
(“Texas”) on September 22, 2021, before HB 20 went into effect.
The district court issued a preliminary injunction on December 1,
2021. It first held that Section 7 is facially unconstitutional. The court
“start[ed] from the premise that social media platforms are not common
carriers.” It then concluded that Platforms engage in “some level of editorial
discretion” by managing and arranging content, and viewpoint-based
censorship is part of that editorial discretion. It further held that this editorial
discretion is protected by cases like Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974). So according to the district court, HB 20’s prohibition
on viewpoint-based censorship unconstitutionally interfered with the
Platforms’ protected editorial discretion. The court did not explain why a
facial attack on Section 7 was appropriate, other than asserting that Section 7
is “replete with constitutional defects” and the court believed “nothing . . .
could be severed and survive.”
The district court then held that Section 2 is facially unconstitutional.
It reasoned that “Section 2’s disclosure and operational provisions are
inordinately burdensome given the unfathomably large numbers of posts on
these sites and apps.” Moreover, the court reasoned that Section 2 will “chill
the social media platforms’ speech” by disincentivizing viewpoint-based
censorship. Again, the court did not explain why a facial challenge to Section
2 was appropriate, other than stating that it imposes “onerously burdensome
disclosure and operational requirements.”
The district court also found that HB 20 discriminates based on
content and speaker, because it permits censorship of some content (like
specific threats of violence directed at a protected class) and only applies to
large social media platforms. It then held that HB 20 fails any level of
heightened scrutiny. Finally, it issued a preliminary injunction.
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Texas timely appealed. On December 15, 2021, Texas moved for a
stay of the preliminary injunction. We granted that motion on May 11, 2022.
On May 31, 2022, in a 5–4 decision, the Supreme Court vacated our stay.
Justice Kagan noted her dissent. Justice Alito, joined by Justice Thomas and
Justice Gorsuch, authored a six-page dissenting opinion to argue that our stay
should have remained undisturbed.
II.
We review the district court’s preliminary injunction for abuse of
discretion. Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 894 F.3d
692, 696 (5th Cir. 2018). A district court abuses its discretion if it grants an
injunction based on clearly erroneous factual findings or erroneous
conclusions of law.
Ibid.
A preliminary injunction is “an extraordinary remedy that may only
be awarded upon a clear showing that the plaintiff is entitled to such relief.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff
seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.”
Id. at 20.
III.
The Platforms contend that Section 7 of HB 20 is facially
unconstitutional. We disagree. We (A) first reject the Platforms’ facial
overbreadth challenge because Section 7 does not chill speech; if anything, it
chills censorship. Then we (B) turn to the First Amendment’s text and
history, which offer no support for the Platforms’ claimed right to censor.
Next, applying Supreme Court precedent, we (C) hold that Section 7 does
not regulate the Platforms’ speech at all; it protects other people’s speech and
regulates the Platforms’ conduct. Our decision (D) is reinforced by 47 U.S.C.
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§ 230, which reflects Congress’s judgment that the Platforms are not
“speaking” when they host other people’s speech. Our decision (E) is still
further reinforced by the common carrier doctrine, which vests the Texas
Legislature with the power to prevent the Platforms from discriminating
against Texas users. Finally, even if all of that’s wrong and Section 7 does
regulate the Platforms’ speech, it (F) satisfies the intermediate scrutiny that
applies to content-neutral rules.
A.
We begin with the First Amendment overbreadth doctrine. It
(1) offers a facial constitutional remedy that protects speech. It (2) does not
apply here because if Section 7 chills anything, it chills censorship. And the
Platforms’ parade of whataboutisms proves their real complaint is a purely
speculative one about how HB 20 will be enforced. The Platforms are
therefore not entitled to pre-enforcement facial relief against Section 7.
1.
The Platforms have asked a federal court to invalidate HB 20 in its
entirety before Texas even tries to enforce it. 3 To put it mildly, pre-enforcement facial challenges to legislative acts are “disfavored for several
3
The plaintiff trade associations—which include every Platform subject to HB
20—asked the district court to find the statute could never be constitutionally enforced
against them. They did so before the law could be enforced against anyone. See 13B
Charles Alan Wright et al., Federal Practice and Procedure § 3532.3
(3d ed. Apr. 2022 Update) (stressing the “distinctions between the ripeness of broad
attacks on the legitimacy of any regulation and the nonripeness of more particular attacks
on more specific applications”). During briefing in the district court, the Platforms
characterized their suit as a facial challenge to HB 20. The district court’s opinion thus
properly treated this suit as a facial challenge, and the Platforms do not object to that
characterization on appeal.
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reasons.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
450 (2008). Three bear emphasis here.
First, the judicial power vested in us by Article III does not include the
power to veto statutes. And that omission is no accident: The Founders
expressly considered giving judges that power, and they decided not to do so.
Several delegates at the Constitutional Convention suggested creating a
“Council of Revision” consisting of federal judges and the executive.
Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 954
(2018). They wanted to empower this Council to veto Congress’s legislation,
subject to congressional override.
Ibid. A veto would render the legislation
“void.”
Ibid. But despite the best efforts of James Wilson and James
Madison, the Convention rejected the proposal—three times over.
Id. at
957–59. That means we have no power to “strike down,” “void,” or
“invalidate” an entire law. See
id. at 936 (explaining that “federal courts have
no authority to erase a duly enacted law from the statute books” but have
only the power “to decline to enforce a statute in a particular case or
controversy” and “to enjoin executive officials from taking steps to enforce
a statute”); Borden v. United States,
141 S. Ct. 1817, 1835–36 (2021) (Thomas,
J., concurring in the judgment) (noting that “[c]ourts have no authority to
strike down statutory text” and that “a facial challenge, if successful, has the
same effect as nullifying a statute” (quotations omitted)); Kevin C. Walsh,
Partial Unconstitutionality,
85 N.Y.U. L. Rev. 738, 756 (2010) (explaining
that the Founders did not conceive of judicial review as the power to “strike
down” legislation).
Second, the judicial power vested in us by Article III is limited to
deciding certain “Cases” and “Controversies.” U.S. Const. art. III, § 2.
A federal court “has no jurisdiction to pronounce any statute, either of a state
or of the United States, void, because irreconcilable with the constitution,
except as it is called upon to adjudge the legal rights of litigants in actual
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controversies.” Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration,
113 U.S. 33, 39 (1885); accord Marbury v. Madison,
5 U.S. (1 Cranch) 137, 178
(1803). This limitation on federal jurisdiction to “actual controversies”
prevents courts from “ancitipat[ing] a question of constitutional law in
advance of the necessity of deciding it.” Liverpool,
113 U.S. at 39; see also
Broadrick v. Oklahoma,
413 U.S. 601, 610–11 (1973) (“[U]nder our
constitutional system courts are not roving commissions assigned to pass
judgment on the validity of the Nation’s laws.”). And it makes pre-enforcement facial challenges a particularly nettlesome affair. Such suits
usually do not present “flesh-and-blood legal problems with data relevant
and adequate to an informed judgment.” New York v. Ferber,
458 U.S. 747,
768 (1982) (quotation omitted). Instead, they require the court “to consider
every conceivable situation which might possibly arise in the application of
complex and comprehensive legislation,” forcing courts to deploy the severe
power of judicial review “with reference to hypothetical cases.” United
States v. Raines,
362 U.S. 17, 21–22 (1960).
Third, federalism. Invalidate-the-law-now, discover-how-it-workslater judging is particularly troublesome when reviewing state laws, as it
deprives “state courts [of ] the opportunity to construe a law to avoid
constitutional infirmities.” Ferber, 458 U.S. at 768. And “facial challenges
threaten to short circuit the democratic process by preventing laws
embodying the will of the people from being implemented in a manner
consistent with the Constitution.” Wash. State Grange,
552 U.S. at 451. The
respect owed to a sovereign State thus demands that we look particularly
askance at a litigant who wants unelected federal judges to countermand the
State’s democratically accountable policymakers.
In accordance with the disfavor that attaches to pre-enforcement
facial challenges, the legal standard for them is extraordinarily high.
Ordinarily, plaintiffs bringing this sort of “facial challenge to a legislative
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Act” must “establish that no set of circumstances exists under which the Act
would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987); see also
Americans for Prosperity Found. v. Bonta,
141 S. Ct. 2373, 2387 (2021). “Such
a challenge is the most difficult to mount successfully.” City of El Cenizo v.
Texas,
890 F.3d 164, 187 (5th Cir. 2018) (quotation omitted). The Platforms
do not even try to show that HB 20 is “unconstitutional in all of its
applications.” Wash. State Grange,
552 U.S. at 449. 4
Instead, their challenge is premised on First Amendment overbreadth
doctrine. Under this doctrine, the Supreme Court has “recognized a second
type of facial challenge, whereby a law may be invalidated as overbroad if a
substantial number of its applications are unconstitutional, judged in relation
to the statute’s plainly legitimate sweep.” Bonta, 141 S. Ct. at 2387 (quotation
omitted). This doctrine is limited to “the First Amendment context.” Ibid.
“Overbreadth is a judicially created doctrine designed to prevent the
chilling of protected expression.” Massachusetts v. Oakes, 491 U.S. 576, 584
(1989) (plurality op.); see generally Lewis D. Sargentich, Note, The First
Amendment Overbreadth Doctrine,
83 Harv. L. Rev. 844 (1970). As the
seminal case explained, the overbreadth doctrine addresses “threat[s] to
censure comments on matters of public concern.” Thornhill v. Alabama,
310
U.S. 88, 97 (1940). The doctrine’s rationale is that “[m]any persons, rather
than undertake the considerable burden (and sometimes risk) of vindicating
their rights through case-by-case litigation, will choose simply to abstain from
protected speech—harming not only themselves but society as a whole,
4
For example, the Platforms do not argue that HB 20’s provision restricting
censorship based on “a user’s geographic location in [Texas]” could not be constitutionally
applied to them. Tex. Civ. Prac. & Rem. Code § 143A.002(a)(3). While they
vigorously argue that viewpoint-based censorship is protected speech, they nowhere
contend that the First Amendment protects censorship based on geographic location.
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which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks,
539 U.S. 113, 119 (2003) (citation omitted).
Consistent with the overbreadth doctrine’s rationale, the Supreme
Court has only applied it where there is a substantial risk that the challenged
law will chill protected speech or association. See, e.g., Bigelow v. Virginia, 421
U.S. 809, 817–18 (1975) (declining to address facial overbreadth challenge
where statutory amendment removed risk that statute “will chill the rights of
others”); Law Students C.R. Rsch. Council, Inc. v. Wadmond,
401 U.S. 154,
167 (1971) (denying facial relief where “careful administration” of state
regulatory scheme could avoid “chilling effects upon the exercise of
constitutional freedoms”). The Court has also instructed that “the
overbreadth doctrine is strong medicine” that should be employed “only as
a last resort.” L.A. Police Dep’t v. United Reporting Pub. Corp.,
528 U.S. 32,
39 (1999) (quotation omitted). And the overbreadth doctrine’s function
“attenuates” as the regulated expression moves from “pure speech toward
conduct.”
Id. at 40 (quotation omitted).
2.
The overbreadth doctrine does not apply to Section 7. That’s for three
reasons.
First, the primary concern of overbreadth doctrine is to avoid chilling
speech. But Section 7 does not chill speech; instead, it chills censorship. So there
can be no concern that declining to facially invalidate HB 20 will inhibit the
marketplace of ideas or discourage commentary on matters of public concern.
Perhaps as-applied challenges to speculative, now-hypothetical enforcement
actions will delineate boundaries to the law. But in the meantime, HB 20’s
prohibitions on censorship will cultivate rather than stifle the marketplace of
ideas that justifies the overbreadth doctrine in the first place.
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The Platforms, of course, argue that their censorship somehow should
be construed as speech for First Amendment purposes. We deal with this
contention at length in Parts III.B, III.C, III.D, and III.E, infra. But even
stipulating arguendo that censorship can enjoy First Amendment protection,
it’s a far cry from the “pure speech” that’s the core concern of the
overbreadth doctrine. See United Reporting, 528 U.S. at 40. At most, the
Platforms’ censorship is, in the district court’s words, a “way that online
services express themselves and effectuate their community standards.”
That is, censorship is at best a form of expressive conduct, for which the
overbreadth doctrine provides only “attenuate[d]” protection.
Ibid.
(quotation omitted); see also Broadrick,
413 U.S. at 614 (“[O]verbreadth
scrutiny has generally been somewhat less rigid in the context of statutes
regulating conduct in the shadow of the First Amendment, but doing so in a
neutral, noncensorial manner.”).
Tellingly, the Platforms have pointed to no case applying the
overbreadth doctrine to protect censorship rather than speech. To the
contrary, the Platforms principally rely on three cases. See Miami Herald, 418
U.S. 241; PG&E v. Public Utilities Commission of California,
475 U.S. 1 (1986);
and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
515
U.S. 557 (1995). But all three involved challenges to concrete applications of
an allegedly unconstitutional law, raised by a defendant in state court
proceedings. So even if these cases supported the Platforms’ argument about
their substantive First Amendment rights, they would provide no support for
the Platforms’ attempt to use the First Amendment as a sword to facially
invalidate a law before it has been applied to anyone under any circumstances.
Second, overbreadth adjudication is meant to protect third parties
who cannot “undertake the considerable burden” of as-applied litigation and
whose speech is therefore likely to be chilled by an overbroad law. Hicks, 539
U.S. at 119; see also United States v. Sineneng-Smith,
140 S. Ct. 1575, 1586
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(2020) (Thomas, J., concurring) (explaining that overbreadth doctrine
“allow[s] individuals to challenge a statute based on a third party’s
constitutional rights”). Courts have deemed this chilling effect on third
parties particularly worrisome when the overbroad law imposes criminal
sanctions. See, e.g., Gooding v. Wilson, 405 U.S. 518, 521 (1972).
This rationale for overbreadth adjudication is wholly inapposite here.
First of all, there are no third parties to chill. The plaintiff trade associations
represent all the Platforms covered by HB 20. Additionally, unlike individual
citizens potentially subject to criminal sanctions—the usual beneficiaries of
overbreadth rulings—the entities subject to HB 20 are large, well-heeled
corporations that have hired an armada of attorneys from some of the best
law firms in the world to protect their censorship rights. And any fear of
chilling is made even less credible by HB 20’s remedial scheme. Not only are
criminal sanctions unavailable; damages are unavailable. It’s hard to see how
the Platforms—which have already shown a willingness to stand on their
rights—will be so chilled by the prospect of declaratory and injunctive relief
that a facial remedy is justified.
Third, the Platforms principally argue against HB 20 by speculating
about the most extreme hypothetical applications of the law. Such
whataboutisms further exemplify why it’s inappropriate to hold the law
facially unconstitutional in a pre-enforcement posture.
Texas enacted HB 20 to address “the Platforms’ evolution into
internet censors.” Explaining the perceived need for the law, Texas and its
amici cite numerous instances in which the Platforms have censored what
Texas contends is pure political speech. For example, one amicus brief
documents the Platforms’ censorship of fifteen prominent celebrities and
political figures—including five holding federal elected office. See Brief for
Amici Curiae The Babylon Bee, LLC, et al. at 26–38. Texas also points to the
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Platforms’ “discriminat[ion] against Americans and in favor of foreign
adversaries” and censorship of even a congressional hearing that featured
disfavored viewpoints.
The Platforms do not directly engage with any of these concerns.
Instead, their primary contention—beginning on page 1 of their brief and
repeated throughout and at oral argument—is that we should declare HB 20
facially invalid because it prohibits the Platforms from censoring “pro-Nazi
speech, terrorist propaganda, [and] Holocaust denial[s].” Red Br. at 1.
Far from justifying pre-enforcement facial invalidation, the Platforms’
obsession with terrorists and Nazis proves the opposite. The Supreme Court
has instructed that “[i]n determining whether a law is facially invalid,” we
should avoid “speculat[ing] about ‘hypothetical’ or ‘imaginary’ cases.”
Wash. State Grange, 552 U.S. at 449–50. Overbreadth doctrine has a
“tendency . . . to summon forth an endless stream of fanciful hypotheticals,”
and this case is no exception. United States v. Williams, 553 U.S. 285, 301
(2008). But it’s improper to exercise the Article III judicial power based on
“hypothetical cases thus imagined.” Raines,
362 U.S. at 22; cf. Sineneng-Smith, 140 S. Ct. at 1585–86 (Thomas, J., concurring) (explaining the tension
between overbreadth adjudication and the constitutional limits on judicial
power).
If we focus instead on “the statute’s facial requirements,” Wash.
State Grange, 552 U.S. at 450, its language renders implausible many of the
Platforms’ extreme hypothesized applications of the law. HB 20 expressly
permits the Platforms to censor any unlawful expression and certain speech
that “incites criminal activity or consists of specific threats”—not to
mention any content the Platforms are authorized to censor by federal law.
Tex. Civ. Prac. & Rem. Code § 143A.006(a). So at a minimum, we
should avoid “determin[ing] the constitutionality of [HB 20] in hypothetical
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situations where it is not even clear the State itself would consider its law
applicable.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 382 (1992).
Or as one amicus puts it, the Platforms at this early stage may not use
borderline hypotheticals involving vile expression to pretermit consideration
of “what actually is at stake—namely, the suppression of domestic political,
religious, and scientific dissent.” Brief of Amicus Curiae Prof. Philip
Hamburger at 21.
In short, Section 7 chills no speech whatsoever. To the extent it chills
anything, it chills censorship. That is, Section 7 might make censors think
twice before removing speech from the Platforms in a viewpoint-discriminatory manner. But we cannot find any cases, from any court, that
suggest a would-be censor can bring a First Amendment overbreadth
challenge because a regulation chills its efforts to prohibit others from
speaking.
B.
We turn now to the merits of the Platforms’ First Amendment claim.
As always, we start with the original public meaning of the Constitution’s
text. We need not tarry long here because the Platforms—by pointing to no
evidence whatsoever on this point—do not contend that the First
Amendment’s history and original understanding provide any basis for
invalidating Section 7.
The First Amendment prevents the government from enacting laws
“abridging the freedom of speech, or of the press.” U.S. Const. amend. I;
see Gitlow v. New York, 268 U.S. 652 (1925) (incorporating this right against
the States). At the Founding and “[f ]or most of our history, speech and press
freedoms entailed two common-law rules—first, a prohibition on prior
restraints and, second, a privilege of speaking in good faith on matters of
public concern.” Jud Campbell, The Emergence of Neutrality,
131 Yale L.J.
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861, 874–75 (2022). The first rule was central to the Speech Clause as
originally understood, because the “core abuse against which it was directed
was the scheme of licensing laws implemented by the monarch and
Parliament to contain the ‘evils’ of the printing press in 16th- and 17-century
England.” Thomas v. Chicago Park Dist., 534 U.S. 316, 320 (2002). For
example, the Printing Act of 1662 required all printers to obtain a license and
then “required that all works be submitted for approval to a government
official, who wielded broad authority to suppress works that he found to be
heretical, seditious, schismatical, or offensive.”
Ibid. (quotation omitted).
Licensing schemes like the Printing Act generated substantial
opposition in both England and the American colonies. They disappeared in
both places by the 1720s. See David S. Bogen, The Origins of Freedom of Speech
and Press, 42 Md. L. Rev. 429, 443–44 (1983). Thus, Blackstone had this
to say two decades before the First Amendment’s ratification:
The liberty of the press is indeed essential to the nature of a
free state: but this consists in laying no previous restraints upon
publications, and not in freedom from censure for criminal
matter when published. . . . To subject the press to the
restrictive power of a licenser, as was formerly done, both
before and since the revolution, is to subject all freedom of
sentiment to the prejudices of one man, and make him the
arbitrary and infallible judge of all controverted points in
learning, religion, and government.
4 William Blackstone, Commentaries *151–52. Founding-era
Americans similarly viewed the freedom from prior restraints as a central
component of the freedoms of speech and the press. See Campbell, Emergence
of Neutrality, supra, at 875–76; see also, e.g., 3 Joseph Story,
Commentaries on the Constitution § 1874 (1833) (“It is plain,
then, that the language of [the First A]mendment imports no more, than that
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every man shall have a right to speak, write, and print his opinions upon any
subject whatsoever, without any prior restraint . . . .”).
As originally understood, the First Amendment’s Speech and Press
Clauses also protected the freedom to make well-intentioned statements of
one’s thoughts, particularly on matters of public concern. See generally Jud
Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 280–
87 (2017). States recognized this freedom before the First Amendment’s
ratification. 5 The Anti-Federalists worked to protect it in the federal
Constitution. 6 And even the Federalists—who were generally less friendly to
the freedom of speech—recognized that the First Amendment protected this
right. See id. at 286; see also, e.g., 8 Annals of Cong. 2148 (1798)
(statement of Rep. Harrison Gray Otis) (recognizing that the First
Amendment protects “the liberty of writing, publishing, and speaking, one’s
5
For example, in 1788, Chief Justice McKean of the Supreme Court of
Pennsylvania explained that “[t]he true liberty of the press is amply secured by permitting
every man to publish his opinions; but it is due to the peace and dignity of society to enquire
into the motives of such publications, and to distinguish between those which are meant for
use and reformation, and with an eye solely to the public good, and those which are
intended merely to delude and defame.” Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 325 (Pa.
1788). This statement illustrates both facets of the First Amendment’s original public
meaning. First, prior restraints were prohibited, full stop: “[E]very man [may] publish his
opinions.”
Ibid. Second, whether post-publication liability could be imposed depended on
whether an opinion was “meant for use and reformation . . . [or] merely to delude and
defame”—to use modern terminology, whether the statement was made in good faith.
Ibid.
6
See, e.g., Centinel No. 1, in 2 The Complete Anti-Federalist 136, 136
(Herbert J. Storing ed., 1981) (urging the People to demand constitutional protection for
“a right of freedom of speech”). Thomas Jefferson also wrote to James Madison—who
later drafted the Bill of Rights—that he thought the Constitution should ensure “[t]he
people shall not be deprived or abridged of their right to speak to write or otherwise to
publish any thing but false facts affecting injuriously the life, property, or reputation of
others or affecting the peace of the confederacy with foreign nations.” Letter from Thomas
Jefferson to James Madison (Aug. 28, 1789), in 5 The Founders’ Constitution
129, 129–30 (Philip B. Kurland & Ralph Lerner eds., 1987).
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thoughts, under the condition of being answerable . . . for false, malicious,
and seditious expressions, whether spoken or written”).
The Platforms neither challenge this understanding of the First
Amendment’s original meaning nor suggest that Section 7 runs afoul of it.
This apparent concession is unsurprising. First, Section 7 does not operate
as a prior restraint on the Platforms’ speech—even if one accepts their
characterization of censorship as speech. Recall Blackstone’s criticism of
prior restraints: that they “subject all freedom of sentiment to the prejudices
of one man, and make him the arbitrary and infallible judge of all controverted
points in learning, religion, and government.” 4 Blackstone, supra, at
*151–52. The Platforms operate “the modern public square,” Packingham,
137 S. Ct. at 1737, and it is they—not the government—who seek to defend
viewpoint-based censorship in this litigation.
Second, Section 7 does not prevent anyone from expressing their
good-faith opinions on matters of public concern. Precisely the opposite:
Section 7 protects Texans’ ability to freely express a diverse set of opinions
through one of the most important communications mediums used in that
State. And it leaves the Platforms free to similarly opine: They can still say
whatever they want (or decline to say anything) about any post by any user.
Moreover, Section 7’s exceptions—where viewpoint-based censorship is still
permitted, like certain specific threats of violence—contemplate malicious,
bad-faith speech not protected by the First Amendment as originally
understood. See Campbell, Emergence of Neutrality, supra, at 878. So Section
7’s carveouts do nothing to impugn its constitutionality under the First
Amendment’s original meaning.
C.
Rather than mount any challenge under the original public meaning of
the First Amendment, the Platforms instead focus their attention on
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Supreme Court doctrine. And under that doctrine, the Platforms contend,
Section 7 somehow burdens their right to speak. How so, you might wonder?
Section 7 does nothing to prohibit the Platforms from saying whatever they
want to say in whatever way they want to say it. Well, the Platforms contend,
when a user says something using one of the Platforms, the act of hosting (or
rejecting) that speech is the Platforms’ own protected speech. Thus, the
Platforms contend, Supreme Court doctrine affords them a sort of
constitutional privilege to eliminate speech that offends the Platforms’
censors.
We reject the Platforms’ efforts to reframe their censorship as speech.
It is undisputed that the Platforms want to eliminate speech—not promote
or protect it. And no amount of doctrinal gymnastics can turn the First
Amendment’s protections for free speech into protections for free censoring.
We (1) explain the relevant doctrine and Supreme Court precedent. Then we
(2) hold this precedent forecloses the Platforms’ argument that Section 7 is
unconstitutional.
1.
Supreme Court precedent instructs that the freedom of speech
includes “the right to refrain from speaking at all.” Wooley v. Maynard, 430
U.S. 705, 714 (1977); see also W. Va. State Bd. of Educ. v. Barnette,
319 U.S.
624, 642 (1943). So the State may not force a private speaker to speak
someone’s else message. See Wooley,
430 U.S. at 714.
But the State can regulate conduct in a way that requires private
entities to host, transmit, or otherwise facilitate speech. Were it otherwise,
no government could impose nondiscrimination requirements on, say,
telephone companies or shipping services. But see 47 U.S.C. § 202(a)
(prohibiting telecommunications common carriers from “mak[ing] any
unjust or unreasonable discrimination in charges, practices, classifications,
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regulations, facilities, or services”). Nor could a State create a right to
distribute leaflets at local shopping malls. But see PruneYard Shopping Ctr. v.
Robins, 447 U.S. 74, 88 (1980) (upholding a California law protecting the
right to pamphleteer in privately owned shopping centers). So First
Amendment doctrine permits regulating the conduct of an entity that hosts
speech, but it generally forbids forcing the host itself to speak or interfering
with the host’s own message.
Five Supreme Court cases elucidate this distinction. The first is
Miami Herald. It involved a Florida law providing that when a newspaper
article criticizes the character or record of a political candidate, the
newspaper must offer the candidate equal space in the paper to reply to the
criticism. 418 U.S. at 244. The Court held that this “right-of-reply” law
violated the First Amendment.
Id. at 258.
The Court explained that the law interfered with the newspaper’s
speech by imposing a content-based penalty on it. See id. at 256 (“The
Florida statute exacts a penalty on the basis of the content of a newspaper.”).
If the newspaper chose to speak about most topics, there was no penalty—
but if it spoke critically about a political candidate, it was penalized with the
“cost in printing and composing time and materials” necessary to give the
candidate a free and equally prominent response column.
Ibid. Moreover, the
reply would “tak[e] up space that could be devoted to other material the
newspaper may have preferred to print.”
Ibid. This interference would
disincentivize the newspaper’s speech: Faced with these penalties, “editors
might well conclude that the safe course is to avoid controversy” and reduce
coverage of political candidates altogether.
Id. at 257.
The Court also concluded that the right-of-reply law impermissibly
compelled the newspaper to speak messages it opposed. As the Court
explained:
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A newspaper is more than a passive receptacle or conduit for
news, comment, and advertising. The choice of material to go
into a newspaper, and the decisions made as to limitations on
the size and content of the paper, and treatment of public issues
and public officials—whether fair or unfair—constitute the
exercise of editorial control and judgment.
Id. at 258. Because a newspaper prints a curated set of material selected by
its editors, everything it publishes is, in a sense, the newspaper’s own speech.
And the newspaper has a right to “editorial control and judgment” over its
speech.
Ibid. Newspapers thus cannot be compelled to “publish that which
reason tells them should not be published.”
Id. at 256 (quotation omitted).
The second case is PruneYard. That case involved a group of high
school students who sought to distribute pamphlets and solicit signatures at
a local shopping mall. The California Supreme Court held that California law
protected the right to “speech and petitioning, reasonably exercised, in
shopping centers even when the centers are privately owned.” 447 U.S. at 78
(quotation omitted). The mall objected on First Amendment grounds,
arguing that “a private property owner has a First Amendment right not to
be forced by the State to use his property as a forum for the speech of others.”
Id. at 85.
The Supreme Court rejected the shopping mall’s challenge. It found
the state law exacted no penalty on the basis of the mall’s speech, and the
mall could “expressly disavow any connection with the [pamphleteers’]
message by simply posting signs in the area where the speakers or handbillers
st[oo]d.” Id. at 87–88. Nor did California law impermissibly compel the mall
itself to speak. To the contrary, because the mall was open to anyone, “[t]he
views expressed by members of the public in passing out pamphlets or
seeking signatures . . . will not likely be identified with those of the owner.”
Id. at 87. The Court also emphasized California’s neutrality among
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viewpoints: Because “no specific message is dictated by the State to be
displayed on appellants’ property,” there was “no danger of governmental
discrimination for or against a particular message.” Ibid.
The mall relied in part on Miami Herald, but the PruneYard Court
easily found that case inapplicable. The Court stated that Miami Herald
“rests on the principle that the State cannot tell a newspaper what it must
print,” and it emphasized the “danger in [Miami Herald] that the statute
would dampen the vigor and limit the variety of public debate by deterring
editors from publishing controversial political statements that might trigger
the application of the statute.” Id. at 88. Those concerns were “obviously . . .
not present” in PruneYard.
Ibid.
The third case is PG&E. A utility company, PG&E, had a longstanding
practice of including a monthly newsletter in its billing envelopes. 475 U.S.
at 5 (plurality op.). “In appearance no different from a small newspaper,” the
newsletter included political editorials and stories on matters of public
interest alongside tips on energy conservation and information about utility
services.
Id. at 5, 8. Concerned that the expense of PG&E’s political speech
was falling on customers, the California Public Utilities Commission
(“Commission”) decided to apportion the billing envelopes’ “extra
space”—that is, the space occupied by the company’s newsletter—and
permit a third-party group representing PG&E ratepayers to use that space
for its opposing messages four months per year.
Id. at 5–6. PG&E objected,
arguing that the First Amendment prevented the Commission from forcing
it to include an adverse party’s speech in its billing envelopes.
The Supreme Court ruled for PG&E. A plurality held that the
Commission’s order both interfered with PG&E’s own speech and
impermissibly forced it to associate with the views of other speakers. As in
Miami Herald, the “one-sidedness” of the Commission’s order penalized
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and disincentivized PG&E’s expression by awarding space only to those who
disagreed with PG&E’s speech:
[B]ecause access is awarded only to those who disagree with
appellant’s [PG&E’s] views and who are hostile to appellant’s
interests, appellant must contend with the fact that whenever
it speaks out on a given issue, it may be forced—at [a third-party’s] discretion—to help disseminate hostile views.
Appellant “might well conclude” that, under these
circumstances, “the safe course is to avoid controversy,”
thereby reducing the free flow of information and ideas that the
First Amendment seeks to promote.
Id. at 14 (quoting Miami Herald,
418 U.S. at 257).
The plurality also found that the Commission’s order impermissibly
“require[d] [PG&E] to associate with speech with which [it] may disagree.”
Id. at 15. Because the third party could “use the billing envelopes to discuss
any issues it chooses,” PG&E “may be forced either to appear to agree . . .
or to respond.” Ibid. “That kind of forced response is antithetical to the free
discussion that the First Amendment seeks to foster.” Id. at 16.
Finally, the PG&E plurality found PruneYard distinguishable for two
reasons. First, PruneYard did not involve a concern that the challenged law
“might affect the shopping center owner’s exercise of his own right to
speak.” Id. at 12. Second, the right of access at issue in PruneYard was not
content-based. Ibid. 7
7
Justice Marshall provided the fifth vote to invalidate the Commission’s order. See
PG&E, 475 U.S. at 21 (Marshall, J., concurring in the judgment). He emphasized two ways
in which the Commission’s order was different from the law upheld in PruneYard.
First, the right of access created by the Commission was more intrusive than the
one upheld in PruneYard. That’s because the shopping mall owner in PruneYard had
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The fourth case is Hurley. GLIB, an organization of Irish-American
gay, lesbian, and bisexual individuals, sought to march in a St. Patrick’s Day
parade in Boston. 515 U.S. at 561. The parade was organized by a private
group, the South Boston Allied War Veterans Council (“Council”).
Id. at
560. The Council refused to admit GLIB, citing “traditional religious and
social values.”
Id. at 562 (quotation omitted). But the Supreme Judicial Court
of Massachusetts held that the parade was a public accommodation under
state law, so the Council had to let GLIB participate.
Id. at 564. The Council
argued that this application of Massachusetts’s public accommodation law
violated the First Amendment, and the Supreme Court agreed.
Id. at 566.
The Court concluded that the parade was a “form of expression” that
receives First Amendment protection. Id. at 568. That’s because “[r]ather
like a composer, the Council 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 Council’s eyes comports with
what merits celebration on that day.”
Id. at 574. And it didn’t matter that the
Council was “rather lenient in admitting participants,” because “a private
speaker does not forfeit constitutional protection simply by combining
multifarious voices, or by failing to edit their themes to isolate an exact
message as the exclusive subject matter of the speech.”
Id. at 569–70.
voluntarily opened his property up to the public, whereas PG&E “has never opened up its
billing envelope to the use of the public.” Id. at 22.
Second, in PruneYard, the speech of the shopping mall owner was not “hindered
in the slightest” by the public’s pamphleteering right. Id. at 24. PG&E, by contrast,
involved “a forum of inherently limited scope,” such that the State’s appropriation of that
forum for a third party’s use necessarily curtailed PG&E’s ability to speak in that forum.
Ibid. And this interference with PG&E’s speech could not be justified by the State’s goal
of “subsidiz[ing] . . . another speaker chosen by the State.” Ibid.
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The cornerstone of the Court’s reasoning was that the parade
sponsors were “intimately connected” to the message communicated by the
parade. Id. at 576. This intimate connection was crucial, the Court held,
because forcing the sponsors to include a particular float was tantamount to
forcing the sponsors to speak: “[W]hen dissemination of a view contrary to
one’s own is forced upon a speaker intimately connected with the
communication advanced, the speaker’s right to autonomy over the message
is compromised.” Id. at 576; see also id. at 573 (emphasizing that “a speaker
has the autonomy to choose the content of his own message,” including by
“decid[ing] what not to say”) (quotation omitted).
The final case that’s particularly relevant to our discussion is Rumsfeld
v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006).
Certain law schools sought to restrict military recruiting on their campuses
because of the military’s policies on sexual orientation.
Id. at 51. Congress
responded by enacting the Solomon Amendment, which denied federal
funding to schools that did not give military recruiters “access to students
that is at least equal in quality and scope to the access provided other
potential employers.”
Id. at 54 (quotation omitted). An organization of law
schools sued, arguing that the Solomon Amendment violated the First
Amendment. The Supreme Court disagreed. It unanimously held that “the
First Amendment would not prevent Congress from directly imposing the
Solomon Amendment’s access requirement,” and the statute thus did not
place an unconstitutional condition on the receipt of federal funds.
Id. at 60.
The Court first held that the Solomon Amendment did not
impermissibly force the law schools to speak. Id. at 61–62. The Court
recognized that “recruiting assistance provided by the schools often includes
elements of speech”—like sending emails or posting bulletin board notices
on the recruiter’s behalf.
Id. at 61. But the Court determined that this speech
was “plainly incidental to the Solomon Amendment’s regulation of
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conduct” and was nothing like a “Government-mandated pledge or motto”
as in Barnette and Wooley. Id. at 62. Congress could therefore compel this
“incidental” speech without violating the First Amendment.
Ibid.
The Court then held that the Solomon Amendment did not
impermissibly interfere with the schools’ own speech, distinguishing Miami
Herald, PG&E, and Hurley. Id. at 63–65. It acknowledged that those three
cases “limited the government’s ability to force one speaker to host or
accommodate another speaker’s message.”
Id. at 63. But it then explained
that these “compelled-speech violation[s] . . . resulted from the fact that the
complaining speaker’s own message was affected by the speech it was forced
to accommodate.” Ibid.; see also
id. at 63–64 (explaining how the challenged
laws “interfere[d] with a speaker’s desired message” in Miami Herald,
PG&E, and Hurley). In Rumsfeld, by contrast, “accommodating the
military’s message [did] not affect the law schools’ speech, because the
schools [were] not speaking when they host interviews and recruiting
receptions.”
Id. at 64. That was true despite the risk that students might
mistakenly interpret the law schools’ conduct as sending the message that
they see nothing wrong with the military’s policies.
Id. at 64–65. In sum, even
though it required law schools to host and accommodate others’ speech, the
Solomon Amendment was constitutional because it “neither limit[ed] what
law schools may say nor require[d] them to say anything.”
Id. at 60.
2.
Under these precedents, a speech host must make one of two
showings to mount a First Amendment challenge. It must show that the
challenged law either (a) compels the host to speak or (b) restricts the host’s
own speech. The Platforms cannot make either showing. And (c) the
Platforms’ counterarguments are unpersuasive.
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a.
Let’s start with compelled speech. In Miami Herald, the Supreme
Court held that Florida’s right-of-reply law was unconstitutional because it
compelled newspapers to speak. Crucially, the Court emphasized that “[a]
newspaper is more than a passive receptable or conduit for news, comment,
or advertising.” Miami Herald, 418 U.S. at 258. Rather, a newspaper curates
and publishes a narrow “choice of material” in accordance with the
“editorial control and judgment” of its editors.
Ibid. Thus, when a newspaper
affirmatively chooses to publish something, it says that particular speech—
at the very least—should be heard and discussed. So forcing a newspaper to
run this or that column is tantamount to forcing the newspaper to speak.
The Platforms are nothing like the newspaper in Miami Herald. Unlike
newspapers, the Platforms exercise virtually no editorial control or judgment.
The Platforms use algorithms to screen out certain obscene and spam-related
content. 8 And then virtually everything else is just posted to the Platform
with zero editorial control or judgment. “Something well north of 99% of
th[is] content . . . never gets reviewed further. The content on a site is, to that
extent, invisible to the [Platform].” NetChoice, LLC v. Moody, 546 F. Supp.
3d 1082, 1092 (N.D. Fla. 2021). Thus the Platforms, unlike newspapers, are
primarily “conduit[s] for news, comment, and advertising.” Miami Herald,
418 U.S. at 258. And that’s why the Supreme Court has described them as
“the modern public square.” Packingham,
137 S. Ct. at 1737; see also Biden v.
Knight First Amend. Inst.,
141 S. Ct. 1220, 1224 (2021) (Thomas, J.,
concurring) (noting Platforms are also “unlike newspapers” in that they
8
The Platforms have disclosed little about their algorithms in this appeal, other
than suggesting that they “often moderate certain policy-violating content before users see
it.” The Platforms never suggest their algorithms somehow exercise substantive,
discretionary review akin to newspaper editors.
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“hold themselves out as organizations that focus on distributing the speech
of the broader public”).
The Platforms’ own representations confirm this. 9 They’ve told their
users: “We try to explicitly view ourselves as not editors. . . . We don’t want
to have editorial judgment over the content that’s in your feed.” 10 They’ve
told the public that they “may not monitor,” “do not endorse,” and “cannot
take responsibility for” the content on their Platforms. 11 They’ve told
Congress that their “goal is to offer a platform for all ideas.” 12 And they’ve
told courts—over and over again—that they simply “serv[e] as conduits for
other parties’ speech.” 13
9
To the extent that these representations vary between Platforms, that further cuts
against the propriety of this facial, pre-enforcement challenge. Cf. supra Part III.A. To
establish associational standing, the plaintiff trade associations asserted in the district court
that this suit “does not require individualized facts about any particular covered social
media platform.” ROA.645; see also Tex. Ass’n of Mfrs. v. U.S. Consumer Prod. Safety
Comm’n, 989 F.3d 368, 377 (5th Cir. 2021) (stating the relevant rule). So the Platforms may
not now rely on individualized facts to claim that, for example, one Platform operates like
a newspaper even if the others don’t.
10
Ravi Somaiya, How Facebook Is Changing the Way Its Users Consume Journalism,
N.Y. Times, Oct. 26, 2014, https://nyti.ms/3ommZXb.
11
Twitter, Terms of Service § 3, https://twitter.com/en/tos (last visited Aug. 6,
2022) [hereinafter Twitter Terms]; see also Facebook, Terms of Service § 4.3,
https://www.facebook.com/terms.php (last visited Aug. 6, 2022) [hereinafter Facebook
Terms] (“We are not responsible for [users’] actions or conduct . . . or any content they
share.”); YouTube, Terms of Service, https://www.youtube.com/static?template=terms
(last visited Aug. 6, 2022) (“Content is the responsibility of the person or entity that
provides it to [YouTube].”).
12
Online Platforms and Market Power, Part 6: Hearing Before the Subcomm. on
Antitrust, Com. and Admin. Law of the H. Comm. on the Judiciary, 116th Cong. 33 (2020)
(testimony of Mark Zuckerberg, CEO, Facebook, Inc.).
13
Brief for Appellees at 1, Klayman v. Zuckerberg, No. 13-7017 (D.C. Cir. Oct. 25,
2013); see also, e.g., Notice of Motion and Motion to Dismiss at 10 n.5, Fields v. Twitter, Inc.,
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It is no answer to say, as the Platforms do, that an observer might
construe the act of hosting speech as an expression of support for its message.
That was the precise contention the Court rejected in both PruneYard and
Rumsfeld: Neither the shopping mall nor the law schools wanted to endorse
the hosted speech. The Rumsfeld Court dismissed that concern out of hand
because even schoolchildren know the difference between sponsoring speech
and allowing it. See 547 U.S. at 65 (citing Bd. of Educ. of Westside Cmty. Schs.
(Dist. 66) v. Mergens,
496 U.S. 226, 250 (1990)). That’s precisely why even
the Platforms concede that “objective observer[s]” would not “conclude
that [Platforms] intended . . . to promote terrorism” when they host terrorist
content. Motion to Dismiss at 23, Gonzalez v. Twitter, Inc., No. 4:16-cv-03282
(N.D. Cal. Jan. 13, 2017).
Recognizing that their compelled-speech analogy to newspapers is a
stretch, the Platforms turn to parades and the Hurley case. The Platforms
contend that Section 7 forces them to host speech that’s inconsistent with
their corporate “values.” But of course, the Platforms do not contend that
they carefully curate users’ speech the way a parade sponsor or composer
“selects . . . expressive units . . . from potential participants.” Hurley, 515
U.S. at 568. Nor do they suggest that they are “intimately connected with
the communication” Section 7 requires them to host.
Id. at 576. The
Platforms instead contend that their censorship is protected because Hurley
creates a freewheeling right for speech hosts to discriminate against messages
they don’t like.
Hurley said nothing of the sort. The Court instead carefully limited its
holding to a speech host (like a parade organizer or composer) who is
“intimately connected” with the hosted speech (like a parade or a
No. 3:16-cv-00213 (N.D. Cal. Apr. 6, 2016) (stating Twitter is “a service provider acting
as a conduit for huge quantities of third-party speech”).
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symphony). Ibid. And the Platforms are nothing like such hosts. They don’t
pick content to “mak[e] some sort of collective point,” even an abstract one
like “what merits celebration on [St. Patrick’s] day.”
Id. at 568, 574. Rather,
the Platforms permit any user who agrees to their boilerplate terms of service
to communicate on any topic, at any time, and for any reason. And as noted
above, virtually none of this content is meaningfully reviewed or edited in any
way.
Nor can the Platforms point to the content they do censor and claim
that makes them akin to parade organizers. In Rumsfeld, for example, the law
schools argued that their denial of access to military recruiters was protected
expressive conduct because it “expressed” the schools’ disagreement with
the military. 547 U.S. at 66. But the Court held that the denial of access was
not inherently expressive, because such conduct would only be understood as
expressive in light of the law schools’ speech explaining it. See
ibid.
Otherwise, observers wouldn’t know that the denial of access stemmed from
an ideological disagreement—they might instead conclude, for example, that
“the military recruiters decided for reasons of their own that they would
rather interview someplace else.”
Ibid.
The same reasoning applies here. 14 If a Platform censors a user’s post,
the expressive quality of that censorship arises only from the Platform’s
14
To be clear, unlike in Rumsfeld, the Platforms in this case never argue that their
acts of censorship constitute “expressive conduct.” Cf., e.g., Texas v. Johnson, 491 U.S.
397, 404 (1989) (noting that expressive conduct may be protected by the First Amendment
if the actor both has “an intent to convey a particularized message” and “the likelihood
[is] great that the message would be understood by those who viewed it” (quotation
omitted)). In fact, the phrase “expressive conduct” never even appears in their brief before
our court. Compare infra at 82 n.41 (noting that the Platforms made such an argument
before the Eleventh Circuit). But to the extent any such argument is latent in their reliance
on Hurley or their claim of protected “editorial discretion,” it’s plainly foreclosed by the
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speech (whether on an individualized basis or in its terms of service) stating
that the Platform chose to censor the speech and explaining how the
censorship expresses the Platform’s views. Otherwise, as in Rumsfeld, an
observer might just as easily infer that the user himself deleted the post and
chose to speak elsewhere. In terms of the conduct’s inherent expressiveness,
there is simply no plausible way to distinguish the targeted denial of access to
only military recruiters in Rumsfeld from the viewpoint-based censorship
regulated by HB 20. Section 7 does not compel the Platforms to speak.
b.
Nor does it do anything to prohibit the Platforms from speaking.
That’s for three independent reasons.
First, the Platforms have virtually unlimited space for speech, so
Section 7’s hosting requirement does nothing to prohibit the Platforms from
saying what they want to say. Contrariwise, both Miami Herald and PG&E
involved “forum[s] of inherently limited scope”—a newspaper and
newsletter with significant space constraints. PG&E, 475 U.S. at 24
(Marshall, J., concurring in the judgment). So when the State appropriated
space in the newspaper or newsletter for a third party’s use, it necessarily
curtailed the owner’s ability to speak in its own forum. See Miami Herald,
418
U.S. at 256 (“[T]he compelled printing . . . tak[es] up space that could be
devoted to other material the newspaper may have preferred to print.”); see
also Rumsfeld,
547 U.S. at 64 (explaining the results in Miami Herald and
PG&E in these terms). Accordingly, when a “speaker’s own message [is]
affected by the speech it [is] forced to accommodate,” the speaker may
invoke the First Amendment to protect their own ability to speak. Rumsfeld,
Supreme Court’s reasoning in Rumsfeld. Moreover, the Platforms never suggest that their
censorship could “convey a particularized message.” See Johnson,
491 U.S. at 404.
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547 U.S. at 63. By contrast, “space constraints on digital platforms are
practically nonexistent”—unlike with newspapers, cable companies, and
many of the other entities the Platforms invoke by analogy. Knight, 141 S. Ct.
at 1226 (Thomas, J., concurring). For this reason, the Platforms can host
users’ speech without giving up their power or their right to speak their own
message(s).
Second, the Platforms are free to say whatever they want to distance
themselves from the speech they host. The Supreme Court has been very
careful to limit forced-affiliation claims by speech hosts. After all, any speech
host could always object that its accommodation for speech might be
confused for a coerced endorsement of it. But the Court rejected that forced-affiliation argument in PruneYard, where the shopping mall owner was not
required to affirm the pamphleteers’ expression in any way, and was “free to
publicly dissociate [himself] from the views of the speakers or handbillers.”
447 U.S. at 88. Similarly, in Rumsfeld, the law schools argued “that if they
treat military and nonmilitary recruiters alike . . . they could be viewed as
sending the message that they see nothing wrong with the military’s
policies.” 547 U.S. at 64–65. But the Supreme Court easily rejected this
argument, because “[n]othing about recruiting suggests that law schools
agree with any speech by recruiters, and nothing in the Solomon Amendment
restricts what the law schools may say about the military’s policies.” Id. at
65. Rather, to win a forced-affiliation claim, the speech host must show that
it’s “intimately connected with the communication” and hence cannot
dissociate itself from it. Hurley,
515 U.S. at 576. Here, the Platforms remain
free to expressly disavow, distance themselves from, or say whatever they
want about any expression they host. For example, Platforms can add
addenda or disclaimers—containing their own speech—to users’ posts. And
many of them already do this, thus dramatically underscoring that Section 7
prohibits none of their speech.
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Third, Section 7 does not impose a content-based penalty on the
Platforms’ speech. Recall that the right-of-reply law in Miami Herald
burdened newspapers with the duty to publish a response column if they
published an article questioning the character or record of a political
candidate. 418 U.S. at 244. As the PG&E plurality explained, this imposed a
content-based penalty on the newspaper’s speech in two distinct senses:
First, the penalty was “triggered by a particular category of newspaper
speech”; and second, access “was awarded only to those who disagreed with
the newspaper’s views.”
475 U.S. at 13; see also
id. at 14 (explaining that the
Commission’s order in PG&E was content-based in the second sense). Here,
by contrast, no category of Platform speech can trigger any additional duty—
or obviate an existing duty—under Section 7. And Section 7 does not create
a special privilege for those who disagree with the Platforms’ views. Cf.
id. at
14 (billing envelope space was awarded only to a single entity formed to
oppose PG&E’s views). Rather, it gives the exact same protection to all
Platform users regardless of their viewpoint.
c.
The Platforms do not seriously dispute any of this. Instead, they argue
that Section 7 interferes with their speech by infringing their “right to
exercise editorial discretion.” They reason as follows. Premise one is that
“editorial discretion” is a separate, freestanding category of First-Amendment-protected expression. Premise two is that the Platforms’
censorship efforts constitute “editorial discretion.” Conclusion: Section 7
burdens the Platforms’ First Amendment rights by obstructing their
censorship efforts.
Both premises in that syllogism are flawed. Premise one is faulty
because the Supreme Court’s cases do not carve out “editorial discretion”
as a special category of First-Amendment-protected expression. Instead, the
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Court considers editorial discretion as one relevant consideration when
deciding whether a challenged regulation impermissibly compels or restricts
protected speech. Take, for example, Turner Broadcasting System, Inc. v.
FCC, 512 U.S. 622 (1994) (“Turner I”). There the Court noted a cable
operator “exercis[es] editorial discretion over which stations or programs to
include in its repertoire.”
Id. at 636 (quotation omitted). For this reason,
among others, the Court concluded that selecting a limited repertoire of cable
channels to transmit constitutes First-Amendment-protected speech. See
id.
at 636–37. Similarly, Miami Herald emphasized newspapers’ “exercise of
editorial control and judgment” to support its holding that their close
affiliation with the speech they publish gives them the right not to publish
“that which reason tells them should not be published.”
418 U.S. at 256, 258
(quotation omitted). But both cases treated editorial discretion as a relevant
consideration supporting their legal conclusions about the presence or
absence of protected speech. Neither case implied that editorial discretion is
itself a freestanding category of constitutionally protected expression. 15
Accordingly, the Platforms cannot invoke “editorial discretion” as if
uttering some sort of First Amendment talisman to protect their censorship.
Were it otherwise, the shopping mall in PruneYard and law schools in
Rumsfeld could have changed the outcomes of those cases by simply asserting
a desire to exercise “editorial discretion” over the speech in their forums.
Instead, the Platforms must show that Section 7 either coerces them to speak
15
The Platforms’ other cases ostensibly supporting premise one are even farther
afield. Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (2019), discussed the
constitutional limits on editorial discretion in public forums and described the issue in this
case as “[a] distinct question not raised here.”
Id. at 1931 & n.2. And Arkansas Educational
Television Commission v. Forbes,
523 U.S. 666 (1998), simply reiterated Turner I’s
conclusion that cable operators’ selection and presentation of programming is speech for
First Amendment purposes.
Id. at 674.
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or interferes with their speech. Of course, how the Platforms do or don’t
exercise editorial control is relevant to this inquiry, as it was in Miami Herald
and Turner I. But the Platforms can’t just shout “editorial discretion!” and
declare victory. 16
Premise two of the Platforms’ syllogism is also faulty. Even assuming
“editorial discretion” is a freestanding category of First-Amendment-protected expression, the Platforms’ censorship doesn’t qualify. Curiously,
the Platforms never define what they mean by “editorial discretion.”
(Perhaps this casts further doubt on the wisdom of recognizing editorial
discretion as a separate category of First-Amendment-protected expression.)
Instead, they simply assert that they exercise protected editorial discretion
because they censor some of the content posted to their Platforms and use
sophisticated algorithms to arrange and present the rest of it. But whatever
the outer bounds of any protected editorial discretion might be, the
Platforms’ censorship falls outside it. That’s for two independent reasons.
First, an entity that exercises “editorial discretion” accepts
reputational and legal responsibility for the content it edits. In the newspaper
context, for instance, the Court has explained that the role of “editors and
16
Our esteemed colleague in dissent makes a similar argument with a different
label. The dissent reads Miami Herald to protect “two levels of publisher speech”: the
published speech itself as well as “the selection process” (or “publishing process”) used
to choose that speech. Post, at 5–6, 11. And it concludes that Section 7 impermissibly
interferes with the Platforms’ publishing process. Id. at 11.
It’s of course true that the right to speak generally entails the right to select what
to speak. But asserting that Section 7 obstructs the Platforms’ “selection process” begs the
question whether the Platforms’ censorship is protected speech at all. If it’s not, then
there’s no First Amendment right for censors to select their targets—just as there’s no
First Amendment right for law schools to select their recruiters, no First Amendment right
for shopping malls to select their pamphleteers, and no First Amendment right for
telephone companies to select which calls to drop.
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editorial employees” generally includes “determin[ing] the news value of
items received” and taking responsibility for the accuracy of the items
transmitted. Associated Press v. NLRB, 301 U.S. 103, 127 (1937). And editorial
discretion generally comes with concomitant legal responsibility. For
example, because of “a newspaper’s editorial judgments in connection with
an advertisement,” it may be held liable “when with actual malice it
publishes a falsely defamatory” statement in an ad. Pittsburgh Press Co. v.
Pittsburgh Comm’n on Human Rels.,
413 U.S. 376, 386 (1973). But the
Platforms strenuously disclaim any reputational or legal responsibility for the
content they host. See supra Part III.C.2.a (quoting the Platforms’ adamant
protestations that they have no responsibility for the speech they host); infra
Part III.D (discussing the Platforms’ representations pertaining to
47 U.S.C.
§ 230).
Second, editorial discretion involves “selection and presentation” of
content before that content is hosted, published, or disseminated. See Ark.
Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998); see also Miami
Herald,
418 U.S. at 258 (a newspaper exercises editorial discretion when
selecting the “choice of material” to print). The Platforms do not choose or
select material before transmitting it: They engage in viewpoint-based
censorship with respect to a tiny fraction of the expression they have already
disseminated. The Platforms offer no Supreme Court case even remotely
suggesting that ex post censorship constitutes editorial discretion akin to ex
ante selection. 17 They instead baldly assert that “it is constitutionally
irrelevant at what point in time platforms exercise editorial discretion.” Red
17
The Platforms claim Horton v. City of Houston, 179 F.3d 188 (5th Cir. 1999),
recognized First Amendment rights for organizations that “do not pre-screen submitted
programs.”
Id. at 190. Horton is wholly irrelevant. It involved a public forum—a public
access cable channel—and concerned the First Amendment rights of a different party
seeking access to the forum. See
id. at 190–91.
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Br. at 25. Not only is this assertion unsupported by any authority, but it also
illogically equates the Platforms’ ex post censorship with the substantive,
discretionary, ex ante review that typifies “editorial discretion” in every
other context. 18
In sum, even if “editorial discretion” is a protected legal category, it’s
far from clear why (even viewpoint-agnostic) content arrangement and (even
infrequent and ex post) censorship should be the criteria for qualification. And
in any event, the Supreme Court has never recognized “editorial discretion”
as a freestanding category of First-Amendment-protected expression.
Rather, the applicable inquiry is whether Section 7 forces the Platforms to
speak or interferes with their speech. Section 7 does neither of those things.
It therefore passes constitutional muster.
18
Our esteemed colleague in dissent suggests that the timing of the Platforms’
censorship doesn’t matter because censorship decisions “can only be made, as a practical
matter, after the appearance of the content on the Platform.” Post, at 13. The dissent’s
factual premise is incorrect: Online platforms can and do moderate submissions before
transmitting them. For example, the New York Times moderates online comments on its
articles before posting them. See The Comments Section, N.Y. Times,
https://help.nytimes.com/hc/en-us/articles/115014792387-The-Comments-Section (last
visited Aug. 6, 2022). That’s arguably the same form of ex ante curation that newspapers
use for other material they publish and that enjoys constitutional protection under Miami
Herald.
If the Platforms wanted the same protections, they could’ve used the same ex ante
curation process. Early online forums and message boards often preapproved all
submissions before transmission. See, e.g., Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995
WL 323710, at *3 (N.Y. Sup. Ct. May 24, 1995) (noting Prodigy’s early policy of “manually
reviewing all messages prior to posting”). Later on, the Platforms made a judgment that
jettisoning editorial discretion to allow instantaneous transmission would make their
Platforms more popular, scalable, and commercially successful. The Platforms thus
disclaimed ex ante curation—precisely because they wanted users to speak without editorial
interference. That decision has consequences. And it reinforces that the users are speaking,
not the Platforms.
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D.
We have no doubts that Section 7 is constitutional. But even if some
were to remain, 47 U.S.C. § 230 would extinguish them. Section 230
provides that the Platforms “shall [not] be treated as the publisher or
speaker” of content developed by other users.
Id. § 230(c)(1). Section 230
reflects Congress’s judgment that the Platforms do not operate like
traditional publishers and are not “speak[ing]” when they host user-submitted content. Congress’s judgment reinforces our conclusion that the
Platforms’ censorship is not speech under the First Amendment.
Congress enacted Section 230 in 1996 to ease uncertainty regarding
online platforms’ exposure to defamation liability for the content they host.
One leading case, Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y.
1991), held that an online platform could not be liable absent knowledge of
the defamatory statements, because it was a distributor that did not exercise
meaningful editorial control. See
id. at 139–40. But then a different case,
Stratton Oakmont, Inc. v. Prodigy Services Co.,
1995 WL 323710 (N.Y. Sup. Ct.
May 24, 1995), accepted an argument very similar to the Platforms’ argument
here. It noted that Prodigy’s online platform had “content guidelines”
prohibiting certain obscene and offensive content. Id. at *2. And Prodigy used
an “automatic software screening program” as well as manual review “to
delete notes from its computer bulletin boards” that violated the guidelines.
Id. at *4. The court held that this conduct “constitute[d] editorial control”
over the platform, so the platform was akin to a newspaper and Prodigy could
be held liable for defamation on that basis. Ibid.
Congress disagreed with Stratton Oakmont and abrogated it by
enacting § 230. See H.R. Rep. No. 104-458, at 194 (1996) (“One of the
specific purposes of [§ 230] is to overrule Stratton-Oakmont v. Prodigy and
any other similar decisions which have treated such providers and users as
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publishers or speakers of content that is not their own because they have
restricted access to objectionable material.”). Congress instructed that “No
provider or user of an interactive computer service [i.e., online platform] shall
be treated as the publisher or speaker of any information provided by another
information content provider.” 47 U.S.C. § 230(c)(1). Online platforms are
thus immune from defamation liability for the content they host, unless they
play a part in the “creation or development” of that content. See
id.
§ 230(f )(3). And this is true even if the online platforms act “in good faith to
restrict access to or availability of material that the provider or user considers
to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable.” Id. § 230(c)(2).
Section 230 undercuts both of the Platforms’ arguments for holding
that their censorship of users is protected speech. Recall that they rely on two
key arguments: first, they suggest the user-submitted content they host is
their speech; and second, they argue they are publishers akin to a newspaper.
Section 230, however, instructs courts not to treat the Platforms as “the
publisher or speaker” of the user-submitted content they host. Id.
§ 230(c)(1). And those are the exact two categories the Platforms invoke to
support their First Amendment argument. So if § 230(c)(1) is constitutional,
how can a court recognize the Platforms as First-Amendment-protected
speakers or publishers of the content they host?
The Platforms respond that they in fact are speakers and publishers,
and Congress simply instructed courts to pretend they aren’t for purposes of
publishing-related liability. Moreover, the legislature can’t define what
constitutes “speech” under the First Amendment—otherwise, for example,
it could abrogate Miami Herald by simply defining newspapers as “not
publishers.” Because the legislature may not define what constitutes First-Amendment-protected speech, the Platforms argue § 230 has no bearing on
the constitutional questions in this case.
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It’s obviously true that a legislature can’t define what speech is or is
not protected by the First Amendment. Cf. Marbury, 5 U.S. at 177. It’s also
irrelevant because that’s not what § 230 purports to do. The First
Amendment generally precludes liability based on the content of someone’s
speech or expression. E.g., Cohen v. California,
403 U.S. 15 (1971).
Defamation liability for publishers is one of the several exceptions to this rule.
See generally New York Times Co. v. Sullivan,
376 U.S. 254 (1964)
(relationship between defamation liability and the First Amendment). But
§ 230 creates an exemption from that exception for the “interactive computer
services” that fall within its scope, including the Platforms. And it does so by
stating that they should not be treated as publishers. Thus, § 230 is nothing
more (or less) than a statutory patch to a gap in the First Amendment’s free
speech guarantee. Given that context, it’s strange to pretend that § 230’s
declaration that Platforms “shall [not] be treated as . . . publisher[s]” has no
relevance in the First Amendment context.
Moreover, Congress’s factual determinations do carry weight in
constitutional adjudication. As the Supreme Court has explained, Congress’s
findings on “essentially factual issues . . . are of course entitled to a great deal
of deference.” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305,
330 n.12 (1985); see also, e.g., Turner Broad. Sys., Inc. v. FCC,
520 U.S. 180,
195–96 (1997) (“Turner II”). And § 230 reflects Congress’s factual
determination that the Platforms are not “publishers.”
Deference to Congress’s judgment is particularly appropriate here
because the Platforms themselves have extensively affirmed, defended, and
relied on that judgment. For example, they’ve asserted that § 230 “promotes
the free exchange of information and ideas over the Internet and prevents the
inevitable chill of speech that would occur if interactive computer services
could be held liable merely for serving as conduits for other parties’
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speech.” 19 Consistent with Congress’s judgment, 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. 20 They’ve also repeatedly defended
the wisdom of Congress’s judgment, arguing that § 230 “made it possible for
every major internet service to be built and ensured important values like free
expression and openness were part of how platforms operate.” 21
The Platforms’ position in this case is a marked shift from their past
claims that they are simple conduits for user speech and that whatever might
look like editorial control is in fact the blind operation of “neutral tools.” Two
amici argue that the Platforms are therefore judicially estopped from
asserting that their censorship is First-Amendment-protected editorial
discretion. 22 See In re Superior Crewboats, Inc., 374 F.3d 330, 334 (5th Cir.
2004) (“Judicial estoppel is a common law doctrine that prevents a party
from assuming inconsistent positions in litigation.”). That’s a fair point. But
in any event, the Platforms’ frequent affirmation of Congress’s factual
judgment underlying § 230 makes us even more skeptical of their radical
19
Brief for Appellees at 1, Klayman v. Zuckerberg, No. 13-7017 (D.C. Cir. Oct. 25,
2013).
20
E.g., Notice of Motion and Motion to Dismiss at 10 n.5, Fields v. Twitter, Inc.,
No. 3:16-cv-00213 (N.D. Cal. Apr. 6, 2016) (“conduit”); Motion to Dismiss at 10, Doe v.
Twitter, Inc., No. 3:21-cv-00485 (N.D. Cal. Mar. 10, 2021) (“neutral tools”); Brief for
Defendants-Appellants at 50, Colon v. Twitter, Inc., No. 21-11283 (11th Cir. Aug. 10, 2020)
(“neutral tools”).
21
Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior? Hearing
Before the S. Comm. on Com., Sci., & Transp., 116th Cong. 2 (2020) [hereinafter Senate
Hearings] (statement of Mark Zuckerberg, CEO, Facebook, Inc.); see also id. at 1 (statement
of Jack Dorsey, CEO, Twitter, Inc.) (arguing that “Section 230 is the internet’s most
important law for free speech and safety”).
22
See Brief for Amici Curiae Heartland Inst. & Am. Principles Project at 12.
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switcheroo that, in this case, they are publishers. Cf. ibid. (doctrine of judicial
estoppel “protect[s] the integrity of the judicial process by preventing parties
from playing fast and loose with the courts to suit the exigencies of self
interest” (quotation omitted)).
The Platforms’ only response is that in passing § 230, Congress
sought to give them an unqualified right to control the content they host—
including through viewpoint-based censorship. They base this argument on
§ 230(c)(2), which clarifies that the Platforms are immune from defamation
liability even if they remove certain categories of “objectionable” content.
But the Platforms’ argument finds no support in § 230(c)(2)’s text or
context. First, § 230(c)(2) only considers the removal of limited categories
of content, like obscene, excessively violent, and similarly objectionable
expression. 23 It says nothing about viewpoint-based or geography-based
censorship. Second, read in context, § 230(c)(2) neither confers nor
contemplates a freestanding right to censor. Instead, it clarifies that
censoring limited categories of content does not remove the immunity
conferred by § 230(c)(1). So rather than helping the Platforms’ case,
§ 230(c)(2) further undermines the Platforms’ claim that they are akin to
newspapers for First Amendment purposes. That’s because it articulates
23
Section 230(c)(2) refers to “obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable” material. To the extent the Platforms try to extract
an unqualified censorship right from the phrase “otherwise objectionable” in isolation,
that’s foreclosed by the Supreme Court’s repeated instruction that “where general words
follow specific words in a statutory enumeration, the general words are construed to
embrace only objects similar in nature to those objects enumerated by the preceding
specific words.” Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler,
537 U.S. 371, 384 (2003) (quotation omitted); see also, e.g., Yates v. United States,
574 U.S.
528, 545 (2015) (plurality op.).
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Congress’s judgment that the Platforms are not like publishers even when they
engage in censorship. 24
In sum, § 230 reflects Congress’s judgment that the Platforms are not
acting as speakers or publishers when they host user-submitted content.
While a statute may not abrogate constitutional rights, Congress’s factual
judgment about the role of online platforms counsels against finding that the
Platforms “publish” (and hence speak) the content that other users post.
And that’s particularly true here, because the Platforms have long relied on
and vigorously defended that judgment—only to make a stark about-face for
this litigation. Section 230 thus reinforces our conclusion that the Platforms’
censorship is not protected speech under the First Amendment.
E.
The common carrier doctrine is a body of common law dating back
long before our Founding. It vests States with the power to impose
nondiscrimination obligations on communication and transportation
providers that hold themselves out to serve all members of the public without
individualized bargaining. The Platforms are communications firms of
tremendous public importance that hold themselves out to serve the public
without individualized bargaining. And Section 7 of HB 20 imposes a basic
24
The Platforms also suggest, in a single sentence of their brief, that HB 20 is
preempted by § 230(c)(2). The district court did not address this argument, so we are
reluctant to pass on it. Cf. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (“[W]e are a
court of review, not of first view.”). Of course, an appellee may urge any ground properly
raised below as an alternative basis for affirmance. See United States v. Am. Ry. Express Co.,
265 U.S. 425, 435–36 (1924). But one sentence is insufficient to adequately brief a claim.
See, e.g., United States v. Williams,
620 F.3d 483, 496 (5th Cir. 2010); Ragas v. Tenn. Gas
Pipeline Co.,
136 F.3d 455, 458 (5th Cir. 1998). We therefore hold that the Platforms have
forfeited their preemption argument.
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nondiscrimination requirement that falls comfortably within the historical
ambit of permissible common carrier regulation.
For this reason, to facially invalidate Texas’s nondiscrimination rule
would be a remarkable derogation of core principles of federalism. American
courts have recognized these principles since the Founding and only briefly
abjured them to serve two unfortunate causes: imposing racial segregation
and enforcing a discredited Lochner-era vision of property rights. Accepting
the Platforms’ theory would represent the first time since those ignominious
years that federal courts have prevented a State from requiring interstate
transportation and communications firms to serve customers without
discrimination. Given the firm rooting of common carrier regulation in our
Nation’s constitutional tradition, any interpretation of the First Amendment
that would make Section 7 facially unconstitutional would be highly
incongruous. Common carrier doctrine thus reinforces our conclusion that
Section 7 comports with the First Amendment.
This section (1) begins with a brief primer on the history of common
carrier doctrine. Then it (2) explains why common carrier doctrine permits
Texas to impose Section 7’s nondiscrimination requirement on the
Platforms. And this (3) supports our constitutional holding that the
Platforms’ viewpoint-based censorship is not First-Amendment-protected
speech.
1.
The doctrine’s roots lie in the notion that persons engaged in
“common callings” have a “duty to serve.” This principle has been part of
Anglo-American law for more than half a millennium. For early English
courts, this principle meant that private enterprises providing essential
public services must serve the public, do so without discrimination, and
charge a reasonable rate. The first “carriers” to which this principle was
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applied were ferries. As Justice Newton of the Court of Common Pleas
recounted, a ferry operator is “required to maintain the ferry and to operate
it and repair it for the convenience of the common people.” Trespass on the
Case in Regard to Certain Mills, YB 22 Hen. VI, fol. 14 (C.P. 1444).
By the time of the American Founding, the duty to serve had
crystallized into a key tenet of the common law. English courts applied this
principle to numerous “common callings,” like stagecoaches, barges,
gristmills, and innkeepers. See 3 Blackstone, supra, at *164 (discussing
the duties of innkeepers, bargemasters, and farriers). For example,
Blackstone explained that a public innkeeper offers “an implied engagement
to entertain all persons who travel that way; and upon this universal assumpsit
an action on the case will lie against him for damages, if he without good
reason refuses to admit a traveler.” Ibid. Or as Sir Matthew Hale explained
regarding wharves, when a private person builds the only wharf in a port,
“the wharf and crane and other conveniences are affected with a public
interest, and they cease to be juris privati only.” Matthew Hale, De Portibus
Maris, in A Collection of Tracts Relative to the Law of
England 77–78 (Francis Hargrave ed., 1787). The common law thus
required the wharf owner to serve the public and not to impose
discriminatory or unreasonable rates. See id. at 77 (wharf owner may not take
“arbitrary and excessive duties for cranage”).
The common carrier’s duty to serve without discrimination was
transplanted to America along with the rest of the common law. See
Charles M. Haar & Daniel Wm. Fessler, The Wrong Side
of the Tracks: A Revolutionary Rediscovery of the
Common Law Tradition of Fairness in the Struggle
Against Inequality 109–40 (1986) [hereinafter Haar & Fessler].
It got its first real test with the rise of railroad empires in the second half of
the nineteenth century. Rail companies became notorious for using rate
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differentials and exclusive contracts to control industries dependent on
cross-country shipping, often structuring contracts to give allies (like the
Standard Oil Company) impenetrable monopolies. See id. at 112–15, 129.
American courts, however, often found that these discriminatory practices
violated the railroads’ common carrier obligations. See, e.g., Messenger v. Pa.
R.R. Co., 37 N.J.L. 531, 534 (1874) (refusing to enforce rate differentials
because “the carrier cannot discriminate between individuals for whom he
will render the service”); New England Express Co. v. Me. Cent. R.R. Co.,
57
Me. 188, 196 (1869) (rejecting exclusive contract because “[t]he very
definition of a common carrier excludes the idea of the right to grant
monopolies or to give special and unequal preferences”). And even when
courts did not impose common carrier duties, they reaffirmed that state
legislatures were vested with the power to do so by statute, as England did
with the Railway and Canal Act of 1854. See Haar & Fessler, supra, at
115–23; see also, e.g., Fitchburg R.R. Co. v. Gage,
78 Mass. (12 Gray) 393, 398
(1859) (because railroads are common carriers, unequal rates are “very fully,
and reasonably, subjected to legislative supervision and control”).
The telegraph was the first communications industry subjected to
common carrier laws in the United States. See Genevieve Lakier, The NonFirst Amendment Law of Freedom of Speech, 134 Harv. L. Rev. 2299, 2320–
24 (2021). Invented in 1838, the telegraph revolutionized how people
engaged with the media and communicated with each other over the next half
century. But by the end of the nineteenth century, legislators grew
“concern[ed] about the possibility that the private entities that controlled
this amazing new technology would use that power to manipulate the flow of
information to the public when doing so served their economic or political
self-interest.” Id. at 2321. These fears proved well-founded. For example,
Western Union, the largest telegraph company, sometimes refused to carry
messages from journalists that competed with its ally, the Associated Press—
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or charged them exorbitant rates. See id. at 2321–22. And the Associated
Press in turn denied its valuable news digests to newspapers that criticized
Western Union. See ibid. Western Union also discriminated against certain
political speech, like strike-related telegraphs. See id. at 2322. And it was
widely believed that Western Union and the Associated Press “influenc[ed]
the reporting of political elections in an effort to promote the election of
candidates their directors favored.” Ibid.; see, e.g., The Blaine Men Bluffing,
N.Y. Times, Nov. 6, 1884, at 5 (accusing them of trying to influence the
close presidential election of 1884 by misreporting and delaying the
transmission of election returns).
In response, States enacted common carrier laws to limit
discrimination in the transmission of telegraph messages. The first such law,
passed by New York, required telegraph companies to “receive d[i]spatches
from and for . . . any individual, and on payment of their usual charges . . . to
transmit the same with impartiality and good faith.” Act of April 12, 1848,
ch. 265, § 11, 1848 N.Y. Laws 392, 395. New York further required such
companies to “transmit all d[i]spatches in the order in which they [we]re
received.”
Id. § 12. Many States eventually passed similar laws, see Lakier,
supra, at 2320, 2322, and Congress ultimately mandated that telegraph
companies “operate their respective telegraph lines as to afford equal
facilities to all, without discrimination in favor of or against any person,
company, or corporation whatever.” Telegraph Lines Act, ch. 772, § 2,
25
Stat. 382, 383 (1888).
Courts considering challenges to these laws—or requests to impose
common carrier duties even in their absence—had to grapple with deciding
whether and to what extent the common carrier doctrine applied to new
innovations and technologies. For transportation and communications firms,
courts focused on two things. First, did the carrier hold itself out to serve any
member of the public without individualized bargaining? As Justice Story had
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explained in the transportation context, “[t]o bring a person within the
description of a common carrier, he must exercise it as a public employment;
he must undertake to carry goods for persons generally; and he must hold
himself out as ready to engage in the transportation of goods for hire as a
business, not as a casual occupation.” Joseph Story, Commentaries
on the Law of Bailments § 495 (9th ed. 1878).
Courts applied this same holding-out test to novel communications
enterprises. For example, in State ex rel. Webster v. Nebraska Telephone Co.,
22 N.W. 237 (Neb. 1885), a Nebraska lawyer sought a writ of mandamus to
compel a telephone company to put a telephone in his office. The Supreme
Court of Nebraska granted the writ, explaining that the company “ha[d]
undertaken with the public to send messages from its instruments, one of
which it propose[d] to supply to each person or interest requiring it.” Id. at
239. Because the company had “so assumed and undertaken to the public,”
it could not arbitrarily deny the lawyer a telephone. Ibid. Other courts agreed
and clarified that telephone companies owed this common carrier obligation
even though they also imposed “reasonable rules and regulations” upon their
customers. Chesapeake & Potomac Tel. Co. v. Balt. & Ohio Tel. Co.,
7 A. 809,
811 (Md. 1887); see also, e.g., Walls v. Strickland,
93 S.E. 857, 858 (N.C. 1917)
(describing this rule as “well settled” by “numerous cases”).
Second, drawing on Hale’s influential seventeenth-century
formulation, courts considered whether the transportation or
communications firm was “affected with a public interest.” This test might
appear unhelpful, but it was “quickened into life by interpretation” over
centuries of common law decisions. See Walton H. Hamilton, Affectation with
Public Interest, 39 Yale L.J. 1089, 1090 (1930). Courts applying this test
looked to whether a firm’s service played a central economic and social role
in society. This discussion by the Supreme Court of Indiana is an instructive
example:
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The telephone is one of the remarkable productions of the
present century, and, although its discovery is of recent date, it
has been in use long enough to have attained well-defined
relations to the general public. It has become as much a matter
of public convenience and of public necessity as were the
stage-coach and sailing vessel a hundred years ago, or as the
steam-boat, the railroad, and the telegraph have become in later
years. It has already become an important instrument of
commerce. No other known device can supply the
extraordinary facilities which it affords. It may therefore be
regarded, when relatively considered, as an indispensable
instrument of commerce. The relations which it has assumed
towards the public make it a common carrier of news—a
common carrier in the sense in which the telegraph is a
common carrier—and impose upon it certain well-defined
obligations of a public character.
Hockett v. Indiana, 5 N.E. 178, 182 (Ind. 1886); see also, e.g., Webster, 22 N.W.
at 239 (“That the telephone, by the necessities of commerce and public use,
has become a public servant, a factor in the commerce of the nation, and of a
great portion of the civilized world, cannot be questioned.”).
In determining whether a communications firm was “affected with a
public interest,” courts also considered the firm’s market share and the
relevant market dynamics. In Hale’s original formulation, if a wharf owner
operated the “only [wharf ] licensed by the queen” or if “there [wa]s no other
wharf in that port,” then the wharf was “affected with a public interest,” and
the owner acquired a duty to serve without discrimination. Hale, supra, at 77–
78. Similarly, a railroad, telegraph, or telephone company’s status as the only
provider in a region heavily suggested it was affected with the public interest.
See, e.g., Webster, 22 N.W. at 238 (“While there is no law giving [the phone
company] a monopoly[,] . . . the mere fact of this territory being covered by
the ‘plant’ of [the company], from the very nature and character of its
business, gives it a monopoly of the business which it transacts.”).
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When state legislatures or state courts imposed new common carrier
requirements, affected firms often sought to evade them by bringing
constitutional claims in federal court. The landmark case is Munn v. Illinois,
94 U.S. 113 (1876). Illinois passed a statute regulating railroads and grain
elevators. Among other things, the statute regulated grain elevators’ rates
and prohibited rate discrimination. See
id. at 117. Munn & Scott, proprietors
of a Chicago grain elevator, brought a litany of constitutional challenges to
Illinois’s law, arguing that it violated the Commerce and Port Preference
Clauses of Article I, as well as the Due Process and Equal Protection Clauses
of the Fourteenth Amendment. See
id. at 119–20. The thrust of the challenge
was that Illinois’s law subverted private property rights without
compensation and without sufficient justification. See, e.g.,
id. at 133.
The Supreme Court rejected Munn & Scott’s claims and held that
state legislatures may constitutionally regulate private firms if the service
they provide is “affected with a public interest.” Id. at 130. The Court
expounded at length “the doctrine which Lord Hale has so forcibly stated,”
approving Hale’s formulation and tracing its adoption and development in
American common law. See
id. at 126–30. It then explained that the Illinois
legislature could have reasonably determined that grain elevators were
affected with a public interest. That’s because they were enormously
important to the agriculture and shipping industries: They stood in the
“gateway of commerce” and provided an indispensable link between western
grain and eastern markets.
Id. at 132. And while there were fourteen grain
elevators in Chicago, controlled by nine firms, the market was small and
interconnected enough to be ripe for abuse if state regulation was wholly
prohibited. See
id. at 131.
After Munn, the Supreme Court repeatedly upheld common carrier
regulations against constitutional challenges. The same year, for example, it
easily rejected a railroad’s challenge to rate regulation and nondiscrimination
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requirements imposed by the Iowa legislature. See Chi., Burlington & Quincy
R.R. Co. v. Iowa, 94 U.S. 155, 161 (1876) (holding that railroads are “engaged
in a public employment affecting the public interest, and, under [Munn v.
Illinois, are] subject to legislative control as to their rates of fare and freight,
unless protected by their charters”). It similarly rejected a constitutional
challenge to a state legislature’s imposition of a duty on telegraph companies
to deliver messages with “impartiality and good faith.” W. Union Tel. Co. v.
James,
162 U.S. 650, 651 (1896).
The Court deviated from this path only briefly and only during an
ignominious period of history marked by racism and the now-discredited
theory of Lochner v. New York, 198 U.S. 45 (1905). Shortly after Munn, for
example, the Court considered a Louisiana law that required common
carriers operating steamboats, railroads, and other vehicles to admit persons
equally, without segregating on the basis of race. Hall v. De Cuir,
95 U.S. 485,
486 (1877). The Court sustained a constitutional challenge to the law on the
ground that it regulated interstate commerce and violated the (negative or
dormant) Commerce Clause. See
id. at 490. Although the law only applied in
Louisiana, the Court found it “impose[d] a direct burden upon inter-state
commerce” because “[a] passenger in the cabin set apart for the use of whites
without the State must, when the boat comes within, share the
accommodations of that cabin with such colored persons as may come on
board afterwards, if the law is enforced.”
Id. at 488–89.
Moreover, during the heyday of Lochner’s substantive due process
misadventure, the Court repeatedly rejected States’ arguments that various
industries were “affected with a public interest” and often invalidated state
laws that included nondiscrimination rules. E.g., Chas. Wolff Packing Co. v.
Ct. of Indus. Rels., 262 U.S. 522, 544 (1923) (invalidating state law regulating
wages in the meat-packing industry); cf. Ray A. Brown, Due Process of Law,
Police Power, and the Supreme Court,
40 Harv. L. Rev. 943, 944 (1927)
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(noting that the Supreme Court declared more economic and social
regulations unconstitutional between 1920 and 1927 than during the
preceding 52 years).
The Court has obviously rejected both Lochner and the odious racism
that infected its decisions in the era of Hall and Plessy v. Ferguson, 163 U.S.
537 (1896). The Platforms have pointed to no case since that time—and we
are not aware of any—sustaining a constitutional challenge to a state law
imposing nondiscrimination obligations on a common carrier.
2.
Texas permissibly determined that the Platforms are common carriers
subject to nondiscrimination regulation. That’s because the Platforms are
communications firms, hold themselves out to serve the public without
individualized bargaining, and are affected with a public interest.
To state the obvious, the Platforms are communications firms. The
Platforms halfheartedly suggest that they are not “members of the
‘communications industry’” because their mode of transmitting expression
differs from what other industry members do. But that’s wrong. The whole
purpose of a social media platform—as aptly captured in HB 20’s definitional
provisions—is to “enable[] users to communicate with other users.” Tex.
Bus. & Com. Code § 120.001(1). The Platforms’ own representations
confirm this—for example, Facebook’s Terms of Service indicates its
purpose is to enable users to “communicate with friends, family, and
others.” 25 In that sense, the Platforms are no different than Verizon or
AT&T.
25
Facebook Terms, § 1; see also Twitter Terms, § 3 (purpose of Twitter is to host
“Content” and “communications”).
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The Platforms also hold themselves out to serve the public. 26 They
permit any adult to make an account and transmit expression after agreeing
to the same boilerplate terms of service. They’ve thus represented a
“willingness to carry [anyone] on the same terms and conditions.” Semon v.
Royal Indem. Co., 279 F.2d 737, 739 (5th Cir. 1960).
The Platforms resist this conclusion, arguing that they have not held
themselves out to serve the public equally. That’s so, they contend, because
they are only willing to do business with users who agree to their terms of
service. But requiring “compliance with their reasonable rules and
regulations” has never permitted a communications firm to avoid common
carrier obligations. Chesapeake, 7 A. at 811. The relevant inquiry isn’t
whether a company has terms and conditions; it’s whether it offers the “same
terms and conditions [to] any and all groups.” Semon,
279 F.2d at 739
(emphasis added). Put differently, the test is whether the company “make[s]
individualized decisions, in particular cases, whether and on what terms to
deal.” FCC v. Midwest Video Corp.,
440 U.S. 689, 701 (1979) (quotation
omitted). Here, it’s undisputed the Platforms apply the same terms and
conditions to all existing and prospective users.
The Platforms also contend they are not open to the public generally
because they censor and otherwise discriminate against certain users and
expression. To the extent the Platforms are arguing that they are not common
carriers because they filter some obscene, vile, and spam-related expression,
this argument lacks any historical or doctrinal support. For example, phone
companies are privileged by law to filter obscene or harassing expression, and
they often do so. 47 U.S.C. § 223; see, e.g., Carlin Commc’ns, Inc. v. Mountain
States Tel. & Tel. Co.,
827 F.2d 1291, 1292 (9th Cir. 1987). Yet they’re still
26
Indeed, one Platform has described its purpose as “to serve the public
conversation.” Senate Hearings, supra, at 1 (statement of Jack Dorsey, CEO, Twitter, Inc.).
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regulated as common carriers. Similarly, transportation providers may eject
vulgar or disorderly passengers, yet States may nonetheless impose common
carrier regulations prohibiting discrimination on more invidious grounds.
E.g., Williams v. Trans World Airlines, 509 F.2d 942, 948 (2d Cir. 1975).
The Platforms nonetheless contend that they cannot be regulated as
common carriers because they engage in viewpoint-based censorship—the
very conduct common carrier regulation would forbid. This contention is
upside down. The Platforms appear to believe that any enterprise can avoid
common carrier obligations by violating those same obligations. That is
obviously wrong and would rob the common carrier doctrine of any content.
The Platforms’ contention also involves a fair bit of historical amnesia.
As discussed earlier, telegraph companies once engaged in extensive
viewpoint-based discrimination, but that did not immunize them from
common carrier regulation. Rather, for most legislators and courts, it made
such regulation all the more urgent. See Lakier, supra, at 2322–23. And nearly
every other industry historically subjected to common carrier regulation
initially discriminated against their customers and sought the right to
continue to do so. See, e.g., Messenger, 37 N.J.L. at 532–33 (railroad); Munn,
94 U.S. at 119–20 (grain elevators); Webster, 22 N.W. at 238 (telephone);
Portland Nat. Gas & Oil Co. v. State ex rel. Kern, 34 N.E. 818, 818 (Ind. 1893)
(gas); City of Danville v. Danville Water Co.,
53 N.E. 118, 121 (Ill. 1899)
(water). The Platforms offer no reason to adopt an ahistorical approach under
which a firm’s existing desire to discriminate against its customers somehow
gives it a permanent immunity from common carrier nondiscrimination
obligations.
Texas also reasonably determined that the Platforms are “affected
with a public interest.” Numerous members of the public depend on social
media platforms to communicate about civic life, art, culture, religion,
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science, politics, school, family, and business. The Supreme Court in 2017
recognized that social media platforms “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, 137 S. Ct. at 1737.
The Court’s “modern public square” label reflects the fact that in-person
social interactions, cultural experiences, and economic undertakings are
increasingly being replaced by interactions and transactions hosted or
facilitated by the Platforms. And if anything, the Platforms’ position as the
modern public square has only become more entrenched in the four years
between Packingham and the Texas legislature’s finding, as the public’s usage
of and dependance on the Platforms has continued to increase. 27
The centrality of the Platforms to public discourse is perhaps most
vividly illustrated by multiple federal court of appeals decisions holding that
the replies to a public official’s Twitter feed constitute a government “public
forum” for First Amendment purposes. See Knight First Amend. Inst. v.
Trump, 928 F.3d 226, 237 (2d Cir. 2019), vacated,
141 S. Ct. 1220 (2021)
(mem.); Garnier v. O’Connor-Ratcliff, --- F.4th ----,
2022 WL 2963453, at *15
(9th Cir. July 27, 2022). 28 These decisions reflect the modern intuition that
the Platforms are the forum for political discussion and debate, and exclusion
27
See Brooke Auxier & Monica Anderson, Social Media Use in 2021, Pew
Research Ctr. (Apr. 7, 2021), https://perma.cc/TR42-LDDT; see also Daily Time
Spent on Social Networking by Internet Users Worldwide from 2012 to 2022, Statista,
https://www.statista.com/statistics/433871/daily-social-media-usage-worldwide/ (last
visited Aug. 6, 2022) (stating that in 2022, the average American spends 123 minutes per
day on social media).
28
See also Knight, 141 S. Ct. at 1221 (Thomas, J., concurring) (noting the tension
between holding a Platform account to be a government public forum and the notion that
the Platforms have no nondiscrimination obligations and may censor a user “at any time
for any reason or no reason”).
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from the Platforms amounts to exclusion from the public discourse. And for
many, the Platforms are also no less central to quotidian discussions about
matters like school, family, and business, than they are to debates about
politics, science, and religion.
In addition to their social importance, the Platforms play a central role
in American economic life. For those who traffic in information—journalists,
academics, pundits, and the like—access to the Platforms can be
indispensable to vocational success. That’s because in the modern economy,
the Platforms provide the most effective way to disseminate news,
commentary, and other information. The same is true for all sorts of cultural
figures, entertainers, and educators, a growing number of whom rely for
much or all of their income on monetizing expression posted to the Platforms.
Finally, even people and companies who traffic in physical goods often lean
heavily on the Platforms to build their brand and market their products to
consumers. That’s why the Platforms, which earn almost all their revenue
through advertising, are among the world’s most valuable corporations.
Thus, just like the telephone a century ago, the Platforms have become a key
“factor in the commerce of the nation, and of a great portion of the civilized
world.” Webster, 22 N.W. at 239. Or at the very least, one cannot say the
Texas legislature’s judgment to that effect was unreasonable.
It’s also true that each Platform has an effective monopoly over its
particular niche of online discourse. Many early telephone companies did not
have legal monopolies, but as a practical matter, they monopolized their
geographic area due to the nature of the telephone business. See id. at 238.
Likewise with the Platforms: While no law gives them a monopoly, “network
effects entrench these companies” because it’s difficult or impossible for a
competitor to reproduce the network that makes an established Platform
useful to its users. Knight, 141 S. Ct. at 1224 (Thomas, J., concurring).
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Academics have explored this concept in depth, 29 but to those familiar with
the Platforms, a few concrete examples can easily demonstrate the point. To
effectively monetize, say, carpet cleaning instructional videos (a real niche),
one needs access to YouTube. Alternatively, sports “influencers” need
access to Instagram. And political pundits need access to Twitter. It’s thus
no answer to tell the censored athlete, as the Platforms do, that she can just
post from a different platform. As Justice Thomas has aptly pointed out,
that’s like telling a man kicked off the train that he can still “hike the Oregon
Trail.” Id. at 1225. The Platforms’ entrenched market power thus further
supports the reasonableness of Texas’s determination that the Platforms are
affected with a public interest. Cf. Munn, 94 U.S. at 131 (market dynamics
supported state legislature’s affectation finding when nine firms controlled
the fourteen major grain elevators serving Chicago).
The Platforms and their amici make three counterarguments that
merit additional responses. First, they suggest that common carrier
regulations are impermissible—or at least disfavored—unless the
government has contributed to a carrier’s monopoly, such as by licensing a
legal monopoly or acquiring property for the carrier through eminent domain.
That’s obviously wrong. Recall that in Hale’s original formulation, common
carrier treatment was appropriate if a proprietor operated the “only [wharf]
licensed by the queen” or if there was simply “no other wharf in that port.”
Hale, supra, at 77. American courts followed this formulation and did not
require a government-conferred monopoly. E.g., Webster, 22 N.W. at 238.
29
See James Alleman, Edmond Baranes & Paul Rappoport, Multisided Markets and
Platform Dominance, in Applied Economics in the Digital Era (James Alleman
et al. eds. 2020); Kenneth A. Bamberger & Orly Lobel, Platform Market Power, 32
Berkeley Tech. L.J. 1051 (2017).
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Even if the Platforms were right, however, the government has
conferred a major benefit on the Platforms by enacting § 230. See supra Part
III.D. As the Platforms have acknowledged, “Section 230 made it possible
for every major internet service to be built.” 30 By their own admission, the
Platforms are just as dependent on § 230’s liability shield as the old railroad
companies were on the ability to traverse land acquired via eminent domain.
Accordingly, the Texas legislature reasonably determined that the Platforms
“have enjoyed governmental support in the United States” and that this
supports common carrier regulation. 31
Second, the Platforms rely on a handful of modern precedents. Chief
among them is U.S. Telecomm. Ass’n v. FCC, 855 F.3d 381 (D.C. Cir. 2017).
There, Judge Srinivasan and then-Judge Kavanaugh sparred over the validity
of the FCC’s net neutrality rule, which purported to use the FCC’s authority
under the Telecommunications Act of 1996 to impose common carrier
obligations on internet service providers. See
id. at 418 (Kavanaugh, J.,
dissenting from the denial of rehearing en banc). Because the primary
question was one of a federal agency’s regulatory authority, see
id. at 418–26,
the case has little relevance to a State’s invocation of the deeply rooted
30
Senate Hearings, supra, at 2 (statement of Mark Zuckerberg, CEO, Facebook,
Inc.).
31
Amicus TechFreedom argues that if common carrier regulations are based on
this sort of quid pro quo relationship, and § 230 is the quid, then a state government
shouldn’t be able to exact the quo. Even apart from the fact that the common carrier
doctrine does not require a quid pro quo arrangement, the argument that the quid and the
quo must come from the same government fails on historical terms. For example,
nineteenth-century railroads were chartered (the quid) by state governments, yet
comprehensive common carrier regulations (the quo) were imposed by the federal
government through the Interstate Commerce Act of 1887 and the Hepburn Amendments
of 1906. See Haar & Fessler, supra, at 137–40.
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common carrier doctrine. 32 And while it’s true that then-Judge Kavanaugh
also argued that the net neutrality rule violated the First Amendment, that
was because “the FCC ha[d] not even tried to make a market power
showing.” See id. at 418; see also id. at 435 (rule would be constitutional upon
showing of market power). Here, the Texas legislature found that “social
media platforms with the largest number of users are common carriers by
virtue of their market dominance,” and this finding is reasonable. See supra
at 57–58.
At any rate, Turner I is the closest Supreme Court case from the
modern era, and it provides no help to the Platforms. There the Court, by a
5-4 vote, refused to hold unlawful federal regulations requiring cable
operators to set aside certain channels for commercial broadcast stations. See
512 U.S. at 661–68. Most significant for our purposes, even the four
dissenting Justices believed Congress could have permissibly imposed more
modest common carrier regulations, rather than singling out broadcasters for
preferential treatment as it had done. Id. at 684 (O’Connor, J., concurring in
part and dissenting in part); see also ibid. (“[I]t stands to reason that if
Congress may demand that telephone companies operate as common
carriers, it can ask the same of cable companies; such an approach would not
suffer from the defect of preferring one speaker to another.”).
Third, the Platforms and their amici argue that they are not engaged
in “carriage.” They claim that “at its core,” the common carrier doctrine is
32
The Platforms’ contention that federal law does not treat them as common
carriers is similarly beside the point. See 47 U.S.C. § 223(e)(6) (clarifying that certain
provisions of federal law should not “be construed to treat interactive computer services
as common carriers”). No party is arguing that the Platforms’ common carrier obligations
stem from federal law. The question is whether the State of Texas can impose common
carrier obligations on the Platforms. And no party has argued that § 223(e)(6) preempts
state common carrier regulation.
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about “the transportation of property”—that is, carrying literal things. But
rather than transport some physical thing, the Platforms “process” and
“manipulate” data in their users’ newsfeeds. They claim this distinction
between “processing” and “carriage” puts them outside the realm of the
common carrier doctrine.
There is no basis for the Platforms’ wooden metaphysical literalism.
A distinction between literal “carriage” and the processing of data obviously
would not fit the doctrine. Were that the case, the telephone and telegraph
could never have been regulated as common carriers. So to make the
purported distinction work, the Platforms and their amici ask us to conceive
of telegraphy and telephony as conveying a “widget of private information”
as a discrete “commodity product.” Brief for Amicus Curiae TechFreedom
at 7–8.
This wordgame defies both law and logic. First, it has no doctrinal
support. The Platforms and their amici cite one case asserting that “[t]he
transportation of property [is the] business of common carriers,” German
All. Ins. Co. v. Lewis, 233 U.S. 389, 406 (1914), but they offer no support
whatsoever for the proposition that property transportation is the only thing
that defines common carriers. Second, because the Platforms, telephones,
and telegraphs all process data at some level, the Platforms’ purported
standard collapses into a distinction between “more complicated
communications processing” (e.g., social media) and “less complicated
communications processing” (e.g., telephony). There’s no logical or
historical basis to adopt this framework. After all, it would have prevented
the common carrier doctrine from ever being applied to a more sophisticated
communications medium than the one it began with.
Relatedly, the Platforms argue that even if they can be regulated as
common carriers, Section 7 goes beyond the permissible scope of the
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common carrier doctrine. That’s because it requires more than simple
“carriage,” or hosting. It also prohibits censorship that “den[ies] equal
access or visibility to, or otherwise discriminate[s] against expression.” Tex.
Civ. Prac. & Rem. Code § 143A.001(1). The Platforms claim this will
interfere with how they process the communications they host and transmit.
This is simply another version of the argument that social media is too
complicated a medium to bear common carrier nondiscrimination
obligations. Common carriers have not normally been able to discharge their
duties by hosting or transmitting communications per se. Rather, they’ve
been required to do so without discriminating—with “impartiality and good
faith,” as required by many state laws concerning telegraph transmission. W.
Union, 162 U.S. at 651. States could even require telegraph companies to
“transmit all d[i]spatches in the order in which they are received.” Act of
April 12, 1848, ch. 265, § 12,
1848 N.Y. Laws 392, 395. Section 7 thus
imposes ordinary common carrier nondiscrimination obligations, drafted to
fit the particularities of the Platforms’ medium.
At bottom, the Platforms ask us to hold that in the long technological
march from ferries and bakeries, to barges and gristmills, to steamboats and
stagecoaches, to railroads and grain elevators, to water and gas lines, to
telegraph and telephone lines, to social media platforms—that social media
marks the point where the underlying technology is finally so complicated
that the government may no longer regulate it to prevent invidious
discrimination. But we may not inter this venerable and centuries-old
doctrine just because Twitter’s censorship tools are more sophisticated than
Western Union’s. Cf. Brown v. Ent. Merch. Ass’n, 564 U.S. 786, 790 (2011)
(“[B]asic principles of freedom of speech and the press, like the First
Amendment’s command, do not vary when a new and different medium for
communication appears.” (quotation omitted)).
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3.
The Platforms next argue that even if Section 7 is a valid common
carrier regulation, it’s still unconstitutional. That’s wrong for two reasons.
First, it’s instructive that federal courts have been generally skeptical
of constitutional challenges to States’ common carrier nondiscrimination
rules. Indeed, it appears that federal courts have only ever sustained such
challenges for the now-discredited purposes of imposing racial segregation
and enforcing a Lochner-era conception of private property rights. See supra
Part III.E.1. Significantly, the Platforms rely on the dissenting opinion in
Nebbia v. New York, 291 U.S. 502 (1934), a case in which a majority of the
Court began to repudiate Lochner. They cite Justice McReynolds’s dissent
for the proposition that “a state may not by legislative fiat convert a private
business into a public utility.” Red Br. at 36 (quoting Nebbia,
291 U.S. at 555
(McReynolds, J., dissenting)). 33 Section 7 imposes a nondiscrimination
requirement that comes nowhere close to making the Platforms public
utilities. But more importantly, the Supreme Court has rejected Lochner and
Justice McReynolds’s position. See, e.g., Ferguson v. Skrupa,
372 U.S. 726,
729 (1963). This court may not resurrect it, and the Platforms’ arguments
provide little reassurance that we could hold Section 7 unconstitutional
without doing so.
33
This and other frequent invocations of private property rights suggest the
Platforms’ real complaint is with the Texas legislature meddling in their right to control
their own business. But the Platforms have not brought a regulatory takings claim. Cf. Pa.
Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). Instead, they’ve asked for the more drastic
remedy of invalidation of an economic regulation—a remedy the federal courts have not
been in the business of providing since the Lochner era. Given the courts’ deference to state
economic regulations for the last eight decades, “it would be freakish to single out” this
historically grounded nondiscrimination requirement “for special treatment.” Cf. Gundy
v. United States,
139 S. Ct. 2116, 2131 (2019) (Alito, J., concurring).
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Second, the fact that the Platforms fall within the historical scope of
the common carrier doctrine further undermines their attempt to
characterize their censorship as “speech.” As discussed at length earlier, the
Platforms’ primary constitutional argument is that they so closely oversee
the speech on their Platforms that they exercise “editorial discretion” akin
to a newspaper. But the same characteristics that make the Platforms
common carriers—first, holding out their communications medium for the
public to use on equal terms; and second, their well-understood social and
economic role as facilitators of other people’s speech—render them not
newspapers but instead indispensable conduits for transporting information.
Put differently, it’s bizarre to posit that the Platforms provide much of the
key communications infrastructure on which the social and economic life of
this Nation depends, and yet conclude each and every communication
transmitted through that infrastructure still somehow implicates the
Platforms’ own speech for First Amendment purposes.
F.
Suppose Section 7 did implicate the Platforms’ First Amendment
rights. The Platforms would still not be entitled to facial pre-enforcement
relief. That’s because (1) it’s a content- and viewpoint-neutral law and is
therefore subject to intermediate scrutiny at most. And (2) Texas’s interests
undergirding Section 7 are sufficient to satisfy that standard.
1.
Even if Section 7 burdens the Platforms’ First Amendment rights, it
does so in a content-neutral way. Such “regulations that are unrelated to the
content of speech are subject to an intermediate level of scrutiny” under the
First Amendment. Turner I, 512 U.S. at 642 (quotation omitted).
The “principal inquiry in determining content neutrality is whether
the government has adopted a regulation of speech because of agreement or
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disagreement with the message it conveys.” Ibid. Accordingly, “[a]s a
general rule, laws that by their terms distinguish favored speech from
disfavored speech on the basis of the ideas or views expressed are content
based.”
Id. at 643. But “laws that confer benefits or impose burdens on
speech without reference to the ideas or views expressed are in most
instances content neutral.”
Ibid. Or as the Court put it more recently, “the
phrase ‘content based’ requires a court to consider whether a regulation of
speech ‘on its face’ draws distinctions based on the message a speaker
conveys.” Reed v. Town of Gilbert,
576 U.S. 155, 163 (2015); accord City of
Austin v. Reagan Nat’l Advert. of Austin, LLC,
142 S. Ct. 1464, 1471–74
(2022).
Section 7 is content-neutral. Even assuming viewpoint-based
censorship is speech, the burden Section 7 imposes on that speech does not
depend on “the ideas or views [it] expresse[s].” Turner I, 512 U.S. at 643. In
other words, Section 7’s burden in no way depends on what message a
Platform conveys or intends to convey through its censorship. That’s
because Section 7 applies equally regardless of the censored user’s viewpoint,
and regardless of the motives (stated or unstated) animating the Platform’s
viewpoint-based or geography-based censorship.
The Platforms have several responses. First, they argue Section 7 is
content-based because its definition of “social media platform” excludes
news, sports, and entertainment websites. Specifically, Section 7 does not
apply to “an online service, application, or website”:
(i) that consists primarily of news, sports, entertainment, or
other information or content that is not user generated but is
preselected by the provider; and
(ii) for which any chat, comments, or interactive functionality
is incidental to, directly related to, or dependent on the
provision of the content described by Subparagraph (i).
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Tex. Bus. & Com. Code § 120.001(1)(C).
This definition does not render HB 20 content-based because the
excluded websites are fundamentally dissimilar mediums. And “the fact that
a law singles out a certain medium . . . is insufficient by itself to raise First
Amendment concerns.” Turner I, 512 U.S. at 660 (quotation omitted). HB
20 defines “social media platform” to sweep in websites that exist primarily
to host and transmit user-generated speech. Section 120.001(1)(C)(i) does
not create a content-based exemption from Section 7’s coverage. Rather, it
excludes the distinct medium of websites whose primary purpose is not the
sharing of user-generated speech but rather the dissemination of information
“preselected by the provider.” Under Turner I, targeting a particular
medium does not render Section 7 content-based.
Second, the Platforms argue Section 7 is content-based because it
permits certain narrow kinds of censorship. Section 7 permits Platforms to
censor, for example, expression directly inciting criminal activity and specific
threats of violence. See Tex. Civ. Prac. & Rem. Code § 143A.006(a).
But the Platforms offer no evidence whatsoever that Texas permitted these
narrow categories of censorship “because of agreement or disagreement with
the message [such censorship] conveys.” Turner I, 512 U.S. at 642 (quotation
omitted). Rather, Section 7 permits censorship of expression that’s
unprotected by the First Amendment. See, e.g., Brandenburg v. Ohio,
395 U.S.
444, 447–48 (1969) (incitement unprotected). So it’s clear that the narrow
permission to censor afforded by § 143A.006 is not “based on hostility—or
favoritism—towards the underlying message expressed” by the Platforms’
censorship. R.A.V. v. City of St. Paul,
505 U.S. 377, 386 (1992). Section
143A.006 therefore does not render Section 7 content-based.
Third, the Platforms argue that Section 7 triggers strict scrutiny
because it targets only the largest social media platforms: those with more
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than 50 million users. They contend this alone requires strict scrutiny, relying
principally on Minneapolis Star and Tribune Co. v. Minnesota Commissioner of
Revenue, 460 U.S. 575 (1983), and Arkansas Writers’ Project, Inc. v. Ragland,
481 U.S. 221 (1987). Minneapolis Star involved a challenge to Minnesota’s
“use tax” on paper and ink products used by the press.
460 U.S. at 577.
Because the tax exempted the first $100,000 of paper and ink used, only the
largest eleven or so publishers incurred any tax liability in a given year.
Id. at
578. The Court held that “Minnesota’s ink and paper tax violates the First
Amendment not only because it singles out the press, but also because it
targets a small group of newspapers.”
Id. at 591. Similarly, in Arkansas
Writers’ Project, the Court held unconstitutional another tax that “target[ed]
a small group within the press,” this time by imposing a sales tax on
magazines but exempting religious, trade, professional, and sports
magazines. 481 U.S. at 229; see also Grosjean v. Am. Press Co.,
297 U.S. 233,
251 (1936) (holding unconstitutional a tax singling out newspapers with
weekly circulations above 20,000).
These taxation cases are inapposite. As the Court later explained,
Minneapolis Star and Arkansas Writers’ Project “demonstrate that differential
taxation of First Amendment speakers is constitutionally suspect when it
threatens to suppress the expression of particular ideas or viewpoints.”
Leathers v. Medlock, 499 U.S. 439, 447 (1991). But “differential taxation of
speakers, even members of the press, does not implicate the First
Amendment unless the tax is directed at, or presents the danger of
suppressing, particular ideas,” as “was the case in Grosjean, Minneapolis
Star, and Arkansas Writers’ [Project].”
Id. at 453. Section 7’s focus on a
particular subset of firms is not directed at suppressing particular ideas or
viewpoints, as Minnesota’s and Arkansas’s discriminatory taxes were.
Rather, the law aims at protecting a diversity of ideas and viewpoints by
focusing on the large firms that constitute “the modern public square.”
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Packingham, 137 S. Ct. at 1737. Nor is there any evidence in the record before
us that Section 7 could in fact suppress any constitutionally protected speech
by anyone. See supra Part III.A. Minneapolis Star and Arkansas Writers’ Project
thus provide no basis for subjecting Section 7 to strict scrutiny.
Finally, the Platforms argue that Section 7 impermissibly targeted the
largest social media platforms because of the Texas legislature’s particular
disagreement with those Platforms’ partisan censorship efforts. This
argument fails on both the facts and the law. On the facts, the Platforms
present no real evidence of the Texas legislature’s alleged improper motives.
Instead, they simply ask us to infer an improper motive from various
unexplained amendments to the user threshold number and the fact that HB
20 lacks legislative findings regarding the user threshold. But it’s just as
plausible to infer that the legislature simply picked a number that would
sweep in the largest platforms most salient to public discussion and debate in
Texas. And on the law, we may not hold unconstitutional “a statute that is
. . . constitutional on its face, on the basis of what fewer than a handful of
Congressmen said about it.” United States v. O’Brien, 391 U.S. 367, 384
(1968). We thus hold that even if Section 7 regulated the Platforms’ speech,
intermediate scrutiny would apply.
2.
Section 7 satisfies intermediate scrutiny. “A content-neutral
regulation will be sustained under the First Amendment if it advances
important governmental interests unrelated to the suppression of free speech
and does not burden substantially more speech than necessary to further
those interests.” Turner II, 520 U.S. at 189. We hold that Section 7’s
regulation of viewpoint-based censorship meets each of these requirements.
First, Section 7 advances an important governmental interest. HB
20’s legislative findings assert that Texas “has a fundamental interest in
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protecting the free exchange of ideas and information in this state.” And
Supreme Court precedent confirms that this is “a governmental purpose of
the highest order.” Turner I, 512 U.S. at 663; see
ibid. (“[A]ssuring 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 II,
520 U.S. at 189 (“promoting the widespread
dissemination of information from a multiplicity of sources” is an important
government interest); see also Associated Press v. United States,
326 U.S. 1, 20
(1945) (“[T]he widest possible dissemination of information from diverse
and antagonistic sources is essential to the welfare of the public.”).
The Platforms argue Miami Herald shows that Section 7 does not
further any sufficient government interest to satisfy intermediate scrutiny.
That’s because the Miami Herald Court considered Florida’s argument that
“the public has lost any ability to respond or to contribute in a meaningful
way to the debate on issues” yet found that interest insufficient to justify the
right-of-reply law. 418 U.S. at 250. But the Miami Herald Court never
discussed or applied intermediate scrutiny, and it didn’t suggest Florida’s
interest was unimportant. Rather, Florida’s law was unconstitutional
because it imposed an obvious content-based penalty on the newspaper’s
speech.
Id. at 256. And at any rate, because it only protected the speech of
political candidates the newspaper disfavored, it would have done little to
advance the State’s broader interest in public debate. Miami Herald thus does
not bear on the importance of Texas’s asserted interest in this case.
The Platforms also rely on Hurley, but that case also did not apply
intermediate scrutiny or weigh the strength of the governmental interest at
stake. And Hurley distinguished Turner I by invoking the inherently
expressive nature of a parade, as compared to “cable’s long history of serving
as a conduit for broadcast signals.” 515 U.S. at 575–77 (quotation omitted).
The Platforms do not exercise the same editorial discretion and control that
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cable operators do—for example, they do not make ex ante decisions to select
a limited repertoire of expression. See supra Part III.C.2.c. So if Hurley
distinguished Turner I on that basis, then Hurley a fortiori doesn’t fit this case.
In sum, the Platforms’ cases—none of which even applied intermediate
scrutiny—do not undercut the Court’s holding that the widespread
dissemination of information from a multiplicity of sources is “a
governmental purpose of the highest order.” Turner I, 512 U.S. at 663.
Second, Section 7 is “unrelated to the suppression of free speech”
because it aims to protect individual speakers’ ability to speak. Turner II, 520
U.S. at 189. The Platforms resist this conclusion only by insisting that Section
7 curtails the Platforms’ own speech. That conflates the criteria for triggering
intermediate scrutiny with the requirements for satisfying it. Intermediate
scrutiny only kicks in when a law curtails speech, so the Platforms’ test would
mean that no law triggering intermediate scrutiny could ever satisfy that
standard. And that would make little sense. Section 7 is plainly unrelated to
the suppression of free speech because at most it curtails the Platforms’
censorship—which they call speech—and only to the extent necessary to
allow Texans to speak without suffering viewpoint discrimination. 34
34
In a similar vein, our esteemed colleague in dissent argues that Section 7 does
not further the important government interest recognized in the Turner cases because it
“strives to promote speech by first targeting the content of others’ speech.” Post, at 15. By
contrast, according to the dissent, “[t]he Turner must-carry rules did not directly target
cable-operators’ editorial discretion.” Ibid.
In our view, Turner is not so easily distinguishable. In Turner, the interference with
cable operators’ speech was not the point of the regulations, nor was it gratuitous—it was
necessary to further the government’s interest in “the widespread dissemination of
information from a multiplicity of sources.” Turner I, 512 U.S. at 662. So too here. Section
7 does not “directly target” the Platforms’ speech any more than the regulations in Turner
targeted cable operators’ speech. As in Turner, the law only obstructs the Platforms’
expression to the extent necessary to protect the public’s “access to a multiplicity of
information sources.”
Id. at 663. The Platforms and the dissent offer no evidence that
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Third, Section 7 “does not burden substantially more speech than
necessary to further [Texas’s] interests.” Ibid. This is perhaps best
illustrated by considering the Platforms’ main argument to the contrary: that
“[i]f the State were truly interested in providing a viewpoint-neutral public
forum, the State could have created its own government-run social-media
platform.” The same network effects that make the Platforms so useful to
their users mean that Texas (or even a private competitor) is unlikely to be
able to reproduce that network and create a similarly valuable
communications medium. See supra at 57–58 & n.29. It’s almost as absurd to
tell Texas to just make its own Twitter as it would have been to tell
broadcasters to just make their own cable systems. And aside from this
bizarre claim, the Platforms offer no less restrictive alternative that would
similarly advance Texas’s interest in “promoting the widespread
dissemination of information from a multiplicity of sources.” Turner II,
520
U.S. at 189. 35
Section 7 gratuitously targets the Platforms’ speech or imposes a burden on the Platforms’
speech that doesn’t further the goal of protecting Texans’ expression.
35
Our esteemed colleague in dissent argues that “Section 7 burdens substantially
more speech than necessary in order to further Texas’s legitimate interests” because it
prohibits demonetization, de-boosting, and other forms of discrimination in addition to
outright bans or content removal. Post, at 17 (quotation omitted). We disagree for several
reasons.
First, for some speakers who depend on advertising for their livelihoods,
demonetization is tantamount to an outright ban because it dooms the financial viability of
their enterprise and hence their speech. See, e.g., Brief for Amici Curiae The Babylon Bee,
LLC, et al. at 4 (explaining amici’s reliance on monetization through social media platforms
to disseminate speech).
Second, demonetization and de-boosting, in addition to outright bans, also thwart
“the widest possible dissemination of information from diverse and antagonistic sources,”
an interest the Supreme Court has recognized as “essential to the welfare of the public.”
Turner I, 512 U.S. at 663 (quotation omitted). They do so by penalizing and disincentivizing
the same diversity the Supreme Court has recognized as “essential.” The dissent does not
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The Platforms also suggest Section 7 is inadequately tailored because
it’s under-inclusive. Specifically, they claim Texas could’ve applied Section
7 to smaller social media platforms too and could’ve excised the carveouts
where the Platforms are still permitted to censor (like specific threats of
violence). But Texas reasonably determined that the largest social media
platforms’ market dominance and network effects make them uniquely in
need of regulation to protect the widespread dissemination of information.
And regulating smaller platforms would intrude more substantially on private
property rights and perhaps create unique constitutional problems of its own.
See PruneYard, 447 U.S. at 101 (Powell, J., concurring in part and in the
judgment) (implying hosting rules would raise additional First Amendment
concerns if applied to small entities). With regard to carveouts, the Platforms
do not explain how requiring them to host, say, specific threats of violence or
direct incitement of criminal activity would have meaningfully advanced
Texas’s interest in protecting a widespread marketplace of ideas—especially
when such speech enjoys no constitutional protection. See, e.g., Brandenburg,
395 U.S. at 447–48.
Section 7 thus serves Texas’s important interest in protecting the
widespread dissemination of information, is unrelated to the suppression of
free expression, and does not burden substantially more speech than
dispute the importance of Texas’s interest. Yet it’s hard to see how Texas can protect its
interest in preserving a “multiplicity of information sources” if the Platforms may make
them functionally invisible to users. See ibid.
Finally, applying intermediate scrutiny, Texas must show only that its “statutory
classification [is] substantially related to an important governmental objective.” Clark v.
Jeter, 486 U.S. 456, 461 (1988). It need not be perfect, or even the “least restrictive
alternative that can be used to achieve [Texas’s] goal.” Cf. Ashcroft v. ACLU,
542 U.S. 656,
666 (2004). Even if one chooses to nitpick at Texas’s enumeration of prohibited
discriminatory acts, they are all at least “substantially related” to the furtherance of its
concededly important interest. Clark,
486 U.S. at 461.
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necessary to advance Texas’s interest. Section 7 therefore satisfies
intermediate scrutiny and would be constitutional on that basis even if its
censorship prohibitions implicated the Platforms’ First Amendment rights.
IV.
The Platforms next contend that they are entitled to pre-enforcement
facial relief against Section 2 of HB 20. Again, we disagree. Section 2 requires
the Platforms to make certain disclosures that consist of “purely factual and
uncontroversial information” about the Platforms’ services. Zauderer v. Off.
of Disciplinary Couns., 471 U.S. 626, 651 (1985). Under the relevant Supreme
Court precedent, the Platforms are therefore not entitled to facial relief
against Section 2.
Section 2’s requirements fall into three categories. First, there are
what we will call the “one-and-done” disclosures: requirements to publish
an acceptable use policy and disclose certain information about the
Platforms’ content management and business practices. See Tex. Bus. &
Com. Code §§ 120.051–52. Second, there is the biannual transparencyreport requirement, which obligates the Platforms to publish a report
containing high-level statistics about their content-moderation activities
every six months. See id. § 120.053. Third, there is the complaint-and-appeal-process requirement, which obligates the Platforms to explain their content
removal decisions, permit affected users to appeal such removals, and
generally respond to appeals within 14 business days. See id. §§ 120.101–04.
Our review of these disclosure requirements is controlled by the
Supreme Court’s decision in Zauderer. That case established that States may
require commercial enterprises to disclose “purely factual and
uncontroversial information” about their services. 471 U.S. at 651. At the
same time, the Court recognized that “unjustified or unduly burdensome
disclosure requirements might offend the First Amendment by chilling
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protected commercial speech.” Ibid. And disclosure requirements must be
reasonably related to a legitimate state interest, like preventing deception of
consumers. See
ibid. Texas argues—and the Platforms do not dispute—that
Section 2 advances the State’s interest in “enabl[ing] users to make an
informed choice” regarding whether to use the Platforms. Tex. Bus. &
Com. Code § 120.051(b). Therefore, the only question is whether the State
has carried its burden to show that the three categories of disclosures
required by Section 2 are not unduly burdensome. See Nat’l Inst. of Fam. &
Life Advocs.,
138 S. Ct. 2361, 2377 (2021) (“NIFLA”).
First, the one-and-done disclosures. Texas contends these impose a
minimal burden, in part because the Platforms already largely comply with
them. The Platforms respond that the one-and-done disclosures are unduly
burdensome because Texas might find the disclosures inadequate and file
suit. This argument is flawed on several levels. Most fundamentally, the
Platforms do not explain how this concern can justify pre-enforcement relief
against Section 2. The Platforms all but concede that publishing an
acceptable use policy and high-level descriptions of their content and data
management practices are not themselves unduly burdensome. Instead, they
speculate that Texas will use these disclosure requirements to file unduly
burdensome lawsuits seeking an unreasonably intrusive level of detail
regarding, for example, the Platforms’ proprietary algorithms. But the
Platforms have no authority suggesting the fear of litigation can render
disclosure requirements unconstitutional—let alone that the fear of
hypothetical litigation can do so in a pre-enforcement posture.
Moreover, the Platforms’ argument ignores the fact that under
Zauderer, we must evaluate whether disclosure requirements are “unduly
burdensome” by reference to whether they threaten to “chill[] protected
commercial speech.” 471 U.S. at 651. That is, Zauderer does not countenance
a broad inquiry into whether disclosure requirements are “unduly
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burdensome” in some abstract sense, but instead instructs us to consider
whether they unduly burden (or “chill”) protected speech and thereby
intrude on an entity’s First Amendment speech rights. 36 Here, the Platforms
do not explain how the one-and-done disclosure requirements—or even the
prospect of litigation to enforce those requirements—could or would burden
the Platforms’ protected speech, even assuming that their censorship
constitutes protected speech.
Second, the biannual transparency report. Texas contends this
requirement imposes little burden because the Platforms already track many
of the statistics required by this report. The Platforms concede this point.
They’ve shared and relied on much of that data in this lawsuit, and they do
not dispute that reporting many of the required statistics would impose little
burden. But they assert, with no explanation, that other required statistics—
like how the Platforms were alerted to policy-violating content—would not
be feasible to collect. And they again suggest that Texas will try to enforce
this disclosure requirement in a particularly intrusive manner, such as by
“demand[ing] access to platforms’ raw data.”
These objections suffer from the same defects as the Platforms’
arguments against the one-and-done disclosures. At best, they’ve shown that
36
The Supreme Court’s recent decision in NIFLA further illustrates the Zauderer
framework. In NIFLA, the Court considered a California law requiring unlicensed clinics
serving pregnant women to provide certain notices. 138 S. Ct. at 2376–77. The Court held
that the law failed First Amendment scrutiny under Zauderer—not because it was “unduly
burdensome” in some administrative or operational sense, but because it would chill the
clinics’ protected speech. For example, “a billboard for an unlicensed facility that says
‘Choose Life’ would have to surround that two-word statement with a 29-word statement
from the government, in as many as 13 different languages.” Id. at 2378. This would
“drown[] out the facility’s own message,” and, as a practical matter, preclude it from
speaking that message in the first place. See ibid. NIFLA confirms that we evaluate whether
a law is “unduly burdensome” by considering its burden on protected speech.
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some of the transparency report’s disclosures, if interpreted in a particularly
demanding way by Texas, might prove unduly burdensome due to
unexplained limits on the Platforms’ technical capabilities. But none of these
contingencies have materialized. And even if they did, a court would need to
evaluate them on a case-by-case basis. Additionally, the Platforms have not
explained how tracking the other purportedly more difficult statistics would
unduly burden their protected speech, as opposed to imposing technical,
economic, or operational burdens. So the Platforms are not entitled to facial
pre-enforcement relief. See Zauderer, 471 U.S. at 651.
Third, the complaint-and-appeal process. Texas again argues that the
burden imposed by this requirement is reasonable because the Platforms
already do what Section 2 requires for large swaths of content they transmit.
And the Platforms again respond that complying with this requirement will
prove unduly burdensome and is technically infeasible. But because the
Platforms already largely comply with the complaint-and-appeal-process
requirement, their only claim of infeasibility is that it’d be difficult to scale
up the Platforms’ systems so as to provide a complaint-and-appeal process
for all the content they host. And they provide just one example: YouTube
comments. They emphasize that YouTube removed over a billion comments
in a three-month period in 2020 and that providing an appeal process for
comment removals would be substantially more onerous than providing the
(existing) system for video removals. The Platforms also argue that the
complaint-and-appeal requirement threatens to chill protected speech.
That’s because, by requiring an explanation and appeal opportunity every
time a Platform censors a user, the complaint-and-appeal requirement
disincentivizes censorship in the first place.
Even if the Platforms’ censorship was speech, and even assuming
Section 2 would chill Google from censoring YouTube comments, that would
not entitle the Platforms to facial pre-enforcement relief against Section 2.
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The Platforms only argue that the complaint-and-appeal requirement will
chill censorship for one subset of one Platform’s content. That falls far short
of showing that “a substantial number of [Section 2’s] applications are
unconstitutional, judged in relation to the statute’s plainly legitimate
sweep.” Bonta, 141 S. Ct. at 2387 (quotation omitted). The Platforms do not
allege that any other application of the complaint-and-appeal requirement
will chill protected speech. And they couldn’t plausibly do so, because they
already provide an appeals process substantially similar to what Section 2
requires for most other categories of content they host. One Platform CEO
even testified that “[w]e believe that all companies should be required to
provide a straightforward process to appeal decisions made by humans or
algorithms.” 37 That’s hardly the stuff of a facial-overbreadth challenge.
Perhaps recognizing that Section 2 easily passes muster under
Zauderer, the Platforms next contend that case is inapposite. They give two
reasons. First, they object that these disclosure requirements are triggered by
the same definition of “social media platform” that Section 7 uses—a
definition they claim is impermissibly content- and speaker-based. But we’ve
already rejected the argument that HB 20’s definition of “social media
platform” impermissibly targets particular content or particular speakers.
See supra Part III.F.1.
Second, the Platforms claim the Zauderer standard does not apply to
disclosure laws that implicate the editorial process—that is, laws requiring
publishers to disclose their editorial policies or explain how they exercise
editorial discretion. They rely on dicta from Herbert v. Lando, 441 U.S. 153
(1979), where the Court suggested a State may not subject a publisher’s
“editorial process to private or official examination merely to satisfy curiosity
37
Senate Hearings, supra, at 2 (statement of Jack Dorsey, CEO, Twitter, Inc.).
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or to serve some general end such as the public interest.” Id. at 174. But
Herbert held that a defamation plaintiff could obtain discovery into the
editorial processes that allegedly defamed him. Id. at 175. And in the course
of so holding, the Court rejected the editor’s request to create “a
constitutional privilege foreclosing direct inquiry into the editorial process.”
Id. at 176. The Platforms offer no authority suggesting we may create a
constitutional privilege—akin to the one rejected in Herbert—for the
disclosures mandated by Section 2. 38
But the more fundamental problem with the Platforms’ reliance on
Herbert is that they do not have an “editorial process” that looks anything
like a traditional publisher’s. See supra Part III.C.2.c. Herbert involved
discovery into how an editor selected, composed, and edited a particular
story. See 441 U.S. at 156–57. But the Platforms, of course, neither select,
compose, nor edit (except in rare instances after dissemination) the speech
they host. So even if there was a different rule for disclosure requirements
implicating a newspaper-like editorial process, that rule would not apply here
because the Platforms have no such process. Put differently, the question in
Herbert was whether the Court should craft a rule protecting activities the
Platforms do not even engage in—and even then, the Court answered “no.”
We need not decide whether the Platforms might have meritorious as-applied challenges to particular applications of Section 2. We reiterate,
however, that the First Amendment protects the Platforms from
38
The Platforms also rely on Washington Post v. McManus, 944 F.3d 506 (4th Cir.
2019), where the Fourth Circuit affirmed a preliminary injunction against a Maryland
disclosure law targeting political campaign advertisements on online platforms. McManus
is irrelevant for numerous reasons. Among them, Maryland’s law burdened a particular
topic of speech (and was therefore content-based), see id. at 513; singled out political
speech, see ibid.; compelled speech by actual newspapers, see id. at 517–18; and violated
doctrines related to campaign-finance law, see id. at 515–17.
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unconstitutional burdens on speech—not disclosure requirements that are
burdensome in the abstract. Here, the Platforms have sought pre-enforcement facial relief primarily by objecting to the technical and
operational burdens Section 2 will impose, and by highlighting a small
number of applications that they contend will prove particularly burdensome.
We hold that this does not entitle the Platforms to pre-enforcement facial
relief against Section 2.
V.
Texas was not the first State to enact a law regulating censorship by
large social media platforms. In May 2021, Florida enacted SB 7072, which
sought to protect political candidates and journalistic organizations from
censorship by large social media platforms. See Fla. Stat. §§ 106.072,
501.2041. 39 The Eleventh Circuit recently held that platforms challenging SB
7072 were entitled to a preliminary injunction against most of its provisions.
See NetChoice, LLC v. Att’y Gen. of Fla.,
34 F.4th 1196 (11th Cir. 2022).
The Platforms urge us to follow the Eleventh Circuit’s NetChoice
opinion. We will not. Most fundamentally, (A) SB 7072 and HB 20 are
dissimilar laws in many legally relevant ways. Much of the Eleventh Circuit’s
reasoning is thus consistent with or irrelevant to our resolution of the
Platforms’ claims in this case. It’s also true, however, that (B) we disagree
with the Eleventh Circuit’s reasoning at three critical junctures.
A.
Florida’s and Texas’s laws are very different. Three differences bear
particular emphasis here.
39
The full text of SB 7072 can be accessed here: https://perma.cc/6WPF-4WC6.
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First, SB 7072 only targets censorship of speech by political
candidates and journalistic enterprises, as well as censorship of speech
“about” political candidates. See Fla. Stat. §§ 106.072(2),
501.2041(2)(h), (2)(j). Under SB 7072, Platforms may not censor speech by
or about a political candidate, full stop—no matter whether the speech is
obscene or threatening. See
id. § 501.2041(2)(h). And Platforms may only
censor a journalistic enterprise’s expression if it is obscene. Id.
§ 501.2041(2)(j). But when it comes to non-journalists’ speech that doesn’t
relate to a political campaign, the Platforms may continue to censor for any
reason or no reason. 40
Thus, to generalize just a bit, SB 7072 prohibits all censorship of some
speakers, while HB 20 prohibits some censorship of all speakers. Texas’s law
permits non-viewpoint-based censorship and censorship of certain
constitutionally unprotected expression regardless of who the speaker is. And
HB 20 applies to all speakers equally, instead of singling out political
candidates and journalists for favored treatment. These are of course highly
relevant distinctions when deciding whether SB 7072 and HB 20 are
impermissibly content- or speaker-based laws and whether they sufficiently
tailored to satisfy heightened First Amendment scrutiny. See NetChoice, 34
F.4th at 1229 (relying on the absence of exceptions to hold that Florida’s
absolute ban on censoring political candidates’ speech is insufficiently
tailored to satisfy intermediate scrutiny).
Second, several of SB 7072’s provisions arguably interfere with
covered platforms’ own speech, instead of merely regulating how they
40
The only provision of SB 7072 arguably limiting censorship outside the realms
of political candidates and journalists is § 501.2041(2)(b), which requires covered platforms
to apply censorship standards “in a consistent manner.” SB 7072 does not define
“consistent.”
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transmit the speech of others. For example, Florida defines censorship to
include “post[ing] an addendum to any content or material posted by a
user.” Fla. Stat. § 501.2041(1)(b). Additionally, the Platforms may not
modify their “rules, terms, and agreements” more than once every 30 days.
Id. § 501.2041(2)(c). These provisions restrict the Platforms’ own speech—
they can’t append a warning to a candidate’s or journalist’s post, and they
can’t explain changes to their terms of service if they’ve already done so in
the past month. HB 20, by contrast, does not interfere with the Platforms’
own speech in any way; they remain free to say whatever and whenever they
want about their terms of service, about any user’s post, or about anything
else.
Third, SB 7072’s remedial scheme markedly differs from HB 20’s.
Florida may collect fines of up to $250,000 per day for certain violations. Id.
§ 106.072(3). For others, platform users may win up to $100,000 in statutory
damages per claim—along with actual and punitive damages. Id.
§ 501.2041(6). On the other hand, HB 20 does not permit the recovery of any
damages; it only provides for prospective declaratory and injunctive relief.
This distinction is significant when considering whether a pre-enforcement
facial challenge is appropriate, especially given overbreadth doctrine’s
concern with the chilling effect of challenged laws. Cf. NetChoice, 34 F.4th at
1230–31 (noting Florida’s law “provides for up to $100,000 in statutory
damages per claim and pegs liability to vague terms like ‘thorough’ and
‘precise’” and holding this threatens to chill protected speech).
Because of these and other distinctions between Florida’s and
Texas’s laws, the Eleventh Circuit’s reasoning is either inapposite to or
consistent with several of our holdings. In particular, our application of
heightened First Amendment scrutiny and our evaluation of HB 20’s
disclosure requirements are reconcilable with the Eleventh Circuit’s opinion.
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B.
We part ways with the Eleventh Circuit, however, on three key issues.
Unlike the Eleventh Circuit, we (1) do not think the Supreme Court has
recognized “editorial discretion” as an independent category of First-Amendment-protected expression. And even if it had, we (2) disagree with
the Eleventh Circuit’s conclusion that the Platforms’ censorship is akin to
the “editorial judgment” that’s been mentioned in Supreme Court doctrine.
Finally, we (3) disagree with the Eleventh Circuit’s conclusion that the
common carrier doctrine does not support the constitutionality of imposing
nondiscrimination obligations on the Platforms. 41
41
The Eleventh Circuit also held, relying on its own precedent, that the Platforms’
censorship constitutes protected expressive conduct. See NetChoice, 34 F.4th at 1212–13.
As noted earlier, the Platforms have not made an expressive-conduct argument in this case.
See supra at 31 n.14. Even so, we are perplexed by the Eleventh Circuit’s holding that
“social-media platforms engage in content moderation that is inherently expressive
notwithstanding [Rumsfeld].” NetChoice, 34 F.4th at 1218.
The Eleventh Circuit suggested that the Platforms’ “targeted removal of users’
speech” is different from law schools’ targeted denial of access to military recruiters
because “a reasonable observer witnessing a platform remove a user or item of content
would infer, at a minimum, a message of disapproval.” Id. at 1217; see also id. at 1217 n.15.
But of course, a reasonable observer watching a law school eject a military recruiter would
also infer a message of disapproval. The Supreme Court held that doesn’t matter because
an observer who merely sees the military recruiting off campus could not know why the
recruiter was off campus. See Rumsfeld, 547 U.S. at 66. Maybe it’s more convenient; maybe
it’s because the law school ejected the military; maybe it’s some other reason. Likewise
with the Platforms. An observer who merely sees a post on “The Democratic Hub,”
NetChoice, 34 F.4th at 1214, could not know why the post appeared there. Maybe it’s more
convenient; maybe it’s because Twitter banned the user; maybe it’s some other reason.
Without more information, the observer has no basis for inferring a “particularized
message” that Twitter disapproved the post. Johnson,
491 U.S. at 404. The Eleventh
Circuit attempted to thread an eyeless needle.
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1.
The Eleventh Circuit reasoned that the Supreme Court’s decisions in
Miami Herald, PG&E, Turner I, and Hurley establish an “editorial-judgment
principle” under which a private entity has a First Amendment right to
control “whether, to what extent, and in what manner to disseminate third-party-created content to the public.” NetChoice, 34 F.4th at 1212. But this
purported rule is never mentioned by the cases the Eleventh Circuit relied
on. And it’s flatly contradicted by other Supreme Court cases that the
Eleventh Circuit addressed only as an afterthought.
First, none of the cases the Eleventh Circuit relied on recognize an
“editorial-judgment principle” or a distinct category of First Amendment
protection for “editorial judgment.” Instead, each case explains how the
challenged regulation either compelled or restricted speech. In Miami Herald,
for example, Florida’s right-of-reply law both forced the Miami Herald to
implicitly convey an editorial endorsement of speech it opposed and limited
its opportunity to engage in other speech it would have preferred. See 418
U.S. at 256–58. Likewise in Turner I, the Court explained that “must-carry
rules regulate cable speech” because they obstruct cable operators’ ability to
express or convey the particular messages or programs they’ve chosen. 512
U.S. at 636–37; see also PG&E, 475 U.S. at 9–16; Hurley, 515 U.S. at 572–77.
If the Eleventh Circuit’s rule was the Supreme Court’s rule, then all
of those cases would have been easy analytical softballs. The Court would
have merely needed to explain that the cases involved a private entity that
wanted to control—that is, exercise “editorial judgment” over—speech it
hosted. And that would have been the end of each case. But that’s not the
analytical route the Supreme Court took. Instead, it focused on whether the
challenged regulation either compelled or restricted the private entity’s own
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speech—and explained at length why the regulations in Miami Herald,
PG&E, Turner I, and Hurley did so.
Second and more importantly, the Eleventh Circuit’s “editorial-judgment principle” conflicts with PruneYard and Rumsfeld. The Eleventh
Circuit tries to square its rule with PruneYard by noting that there, the forum
owner didn’t make an editorial-judgment argument. NetChoice, 34 F.4th at
1215. Perhaps, although that writes PruneYard out of the U.S. Reports by
making the precedent irrelevant as long as a speech host chants the magical
incantation “editorial judgment!” But then we get to Rumsfeld, where the
forum owner did make the editorial-judgment argument: The law schools
claimed a “First Amendment right to decide whether to disseminate or
accommodate a military recruiter’s message” in their forum. 547 U.S. at 53.
Yet the Supreme Court unanimously rejected the claimed right to choose
who speaks in the law schools’ forum because “[t]he Solomon Amendment
neither limits what law schools may say nor requires them to say anything.”
Id. at 60.
The Eleventh Circuit tried to square its “editorial-judgment
principle” with Rumsfeld by asserting that “[s]ocial-media platforms, unlike
law-school recruiting services, are in the business of disseminating curated
collections of speech.” NetChoice, 34 F.4th at 1216. The Eleventh Circuit
thus relied on the fact that social media platforms’ business is disseminating
users’ speech, whereas law schools’ core business is not disseminating job
recruiters’ speech. On the Eleventh Circuit’s reasoning, the business of
disseminating speech is protected editorial judgment even if casual or
sporadic dissemination is not.
This distinction turns law, logic, and history on their heads. First, law:
The Supreme Court’s cases have never stated or implied that this distinction
is dispositive. If they had, phone companies and shipping services would be
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free to discriminate, while PG&E (whose primary business is providing
electricity, not disseminating speech) would have no First Amendment right
to decline to share its billing envelope space with a third party.
Next, logic: If a firm’s core business is disseminating others’ speech,
then that should weaken, not strengthen, the firm’s argument that it has a
First Amendment right to censor that speech. In PruneYard, for example, the
shopping mall was open to the public—but for the purpose of shopping, not
sharing expression. So it was perhaps tenuous for the State to use the public
nature of the mall to justify a speech-hosting requirement. Cf. PruneYard, 447
U.S. at 95 (White, J., concurring in part) (noting that California’s hosting
requirement involved communication “about subjects having no connection
with the shopping centers’ business”). But here, the Platforms are open to
the public for the specific purpose of disseminating the public’s speech. It’s
rather odd to say that a business has more rights to discriminate when it’s in
the speech business than when it’s in some altogether non-speech business
(like shopping or legal education).
Last, history: Communications firms have historically been the
principal targets of laws prohibiting viewpoint-discriminatory transmission
of speech. See supra Part III.E. By contrast, if an entity carried speech, people,
or other goods only “as a casual occupation,” see Story,
Commentaries on the Law of Bailments, supra, § 495, common
carrier obligations could not be imposed. So there’s no basis in history, logic,
or law for distinguishing Rumsfeld on the ground that law schools’ core
business is not disseminating speech.
The Eleventh Circuit also distinguished Rumsfeld on the ground that
social media platforms, unlike law schools, disseminate “curated collections
of speech.” NetChoice, 34 F.4th at 1216. This curation means that social
media platforms are engaged in “editorial judgment” while law schools are
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not. But that’s backwards. The law schools in Rumsfeld deliberately reviewed
the content and viewpoint of bulletin board notices and emails before
disseminating them to students on behalf of employers. But social media
platforms, after algorithmic screening to filter obscenity and spam, arrange
and transmit expression to users while remaining agnostic as to far more than
99% of that expression’s content and viewpoint. See Moody, 546 F. Supp. 3d
at 1091–92. If either entity is “curating” expression in the ordinary sense—
that is, engaging in substantive, discretionary review to decide what merits
inclusion in a collection—it’s the law schools. A person’s social media feed
is “curated” in the same sense that his mail is curated because the postal
service has used automated screening to filter out hazardous materials and
overweight packages, and then organized and affixed a logo to the mail before
delivery. And it has never been true that content-agnostic processing,
organizing, and arranging of expression generate some First Amendment
license to censor. Were it otherwise, not only would Rumsfeld have come out
the other way, but all sorts of nondiscrimination obligations currently
imposed on communications firms and mail carriers would be
unconstitutional.
2.
The foregoing explains why the Eleventh Circuit’s articulation of its
“editorial-judgment principle” conflicts with Supreme Court precedent. But
even if editorial judgment was a freestanding category of First-Amendment-protected expression, the Eleventh Circuit’s explanation of why the
Platforms’ censorship falls into that category is unpersuasive.
The Eleventh Circuit did not discuss the glaring distinctions between
the Platforms’ censorship and the editorial judgment described in Miami
Herald and Turner I. For example, cable operators “exercise substantial
editorial discretion in the selection and presentation of their
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programming”—that is, they select (with great care) beforehand a limited
repertoire of channels to transmit. Ark. Educ., 523 U.S. at 673. Newspapers
similarly publish a narrow “choice of material” that’s been reviewed and
edited beforehand, and they are subject to legal and reputational
responsibility for that material. See Miami Herald,
418 U.S. at 258; see also
id.
at 261–62 (White, J., concurring). The Eleventh Circuit did not suggest the
Platforms operate similarly.
Instead, the Eleventh Circuit tried to equate the Platforms’
censorship with the editorial processes of newspapers and cable operators by
reasoning that “Platforms employ editorial judgment to convey some
messages but not others and thereby cultivate different types of
communities.” NetChoice, 34 F.4th at 1213. For example, YouTube censors
some content to create a “welcoming community”; Facebook censors to
“foster authenticity, safety, privacy, and dignity”; and Twitter censors “to
ensure all people can participate in the public conversation freely and safely.”
Ibid. (quotation omitted). Because the Platforms censor speech to further
these amorphous goals, the Eleventh Circuit held, the censorship is protected
by the First Amendment. See ibid.
Recall that under the Eleventh Circuit’s framework, the presence of
editorial judgment generates a First Amendment right to censor. But now,
censorship itself—as long as it’s explained by a generalized appeal to some
attractive value—constitutes editorial judgment. This is circular: The
Platforms have a right to censor because they exercise editorial judgment, and
they exercise editorial judgment because they censor. The only arguably noncircular part of this framework is the apparent requirement that the
censorship be justified by appealing to something like a “welcoming
community” (as opposed to, say, an “unwelcoming one”). But the Eleventh
Circuit gives this requirement no meaningful content: The Platforms may
establish a First Amendment right to censor by invoking any generalized
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interest, like “fostering authenticity,” without even explaining how
viewpoint-based censorship furthers that interest. The practical upshot is
that telephone companies, email providers, shipping services, or any other
entity engaged in facilitating speech can acquire a First Amendment license
to censor disfavored viewpoints by merely gesturing towards “safety” or
“dignity.” That is not the law, as Miami Herald and Turner I illustrate and
PruneYard and Rumsfeld confirm.
3.
The Eleventh Circuit quickly dismissed the common carrier doctrine
without addressing its history or propounding a test for how it should apply.
See id. at 1219–22. This part of the Eleventh Circuit’s opinion is also
unpersuasive.
The Eleventh Circuit “confess[ed] some uncertainty” as to whether
the State’s position was “(a) that platforms are already common carriers” or
“(b) that the State can, by dint of ordinary legislation, make them common
carriers.” Id. at 1220. It then rejected each position in turn. First, it reasoned
that the Platforms are not already common carriers because pre-existing law
did not already regulate them as such. See ibid. Moreover, the Platforms don’t
currently follow common carrier obligations. 42 And pre-SB 7072 and HB 20
42
In this vein, the Eleventh Circuit found it significant that “social-media
platforms have never acted like common carriers” and that users must “accept their terms
of service and abide by their community standards.” NetChoice, 34 F.4th at 1220. Of
course, violating common carrier obligations has never been sufficient to exempt a firm
from common carrier obligations. The dominant telegraph companies, for example, offered
discriminatory services before States regulated them as common carriers. See supra Part
III.E. Similarly, most or all common carriers have terms of service—for example, one must
accept FedEx’s terms to ship a package—and common carriers retain the right to remove
unruly passengers or obscene transmissions. The Eleventh Circuit presents no authority
suggesting this somehow forecloses common carrier regulation.
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judicial decisions note the lack of government regulation of internet forums. 43
Second, it reasoned that the State can’t regulate them as common carriers
because they are not already common carriers: That would give the
“government authority to strip an entity of its First Amendment rights
merely by labeling it a common carrier.” Id. at 1221.
So in the Eleventh Circuit’s view, a firm can’t become a common
carrier unless the law already recognizes it as such, and the law may only
recognize it as such if it’s already a common carrier. Again, that’s circular.
And it’s inconsistent with the common-law history and tradition discussed
earlier, where common carrier nondiscrimination obligations were extended
from ferries, to railroads, to telegraphy, to telephony, and so on. See supra
Part III.E. The Eleventh Circuit didn’t purport to reconcile its approach with
this history. The implication is that history doesn’t matter because SB 7072
is unconstitutional under the Eleventh Circuit’s “editorial-judgment
principle.” But the Eleventh Circuit offers no persuasive justification for
reading that principle into the Constitution, especially when it would
contravene a deeply rooted common law nondiscrimination doctrine that’s
centuries older than the Constitution itself. See supra Part III.E.1.
43
The Eleventh Circuit primarily focused on Turner I, analogizing social media
platforms to cable broadcasters. But nothing in Turner I suggests that regulating social
media platforms as common carriers would be unconstitutional. The opposite is true: Even
the Turner I dissenters—the Justices who were more protective of cable operators’ speech
rights—strongly suggested the First Amendment would not prevent regulating cable
operators as common carriers. See 512 U.S. at 684 (O’Connor, J., concurring in part and
dissenting in part) (“Congress might also conceivably obligate cable operators to act as
common carriers for some of their channels . . . . [I]t stands to reason that if Congress may
demand that telephone companies operate as common carriers, it can ask the same of cable
companies.”).
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…
The First Amendment protects speech: It generally prevents the
government from interfering with people’s speech or forcing them to speak.
The Platforms argue that because they host and transmit speech, the First
Amendment also gives them an unqualified license to invalidate laws that
hinder them from censoring speech they don’t like. And they say that license
entitles them to pre-enforcement facial relief against HB 20.
We reject the Platforms’ attempt to extract a freewheeling censorship
right from the Constitution’s free speech guarantee. The Platforms are not
newspapers. Their censorship is not speech. They’re not entitled to pre-enforcement facial relief. And HB 20 is constitutional because it neither
compels nor obstructs the Platforms’ own speech in any way. The district
court erred in concluding otherwise and abused its discretion by issuing a
preliminary injunction. The preliminary injunction is VACATED, and this
case is REMANDED for further proceedings consistent with this opinion.
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Edith H. Jones, Circuit Judge, concurring:
I concur in Judge Oldham’s conclusion and reasoning that the
business of the regulated large social media platforms is hosting the speech
of others. Functioning as conduits for both makers and recipients of speech,
the platforms’ businesses are closer analytically to the holdings of the
Supreme Court in PruneYard and FAIR than to Miami Herald, Pacific Gas &
Electric, and Hurley. It follows from the first two cases that in arbitrarily
excluding from their platforms the makers of speech and preventing
disfavored speech from reaching potential audiences (“censoring,” in the
comprehensive statutory term), they are not themselves “speaking” for First
Amendment purposes.
In particular, it is ludicrous to assert, as NetChoice does, that in
forbidding the covered platforms from exercising viewpoint-based
“censorship,” the platforms’ “own speech” is curtailed. But for their
advertising such “censorship”—or for the censored parties’ voicing their
suspicions about such actions—no one would know about the goals of their
algorithmic magic. It is hard to construe as “speech” what the speaker never
says, or when it acts so vaguely as to be incomprehensible. Further, the
platforms bestride a nearly unlimited digital world in which they have more
than enough opportunity to express their views in many ways other than
“censorship.” The Texas statute regulates none of their verbal “speech.”
What the statute does, as Judge Oldham carefully explains, is ensure that a
multiplicity of voices will contend for audience attention on these platforms.
That is a pro-speech, not anti-free speech result.
Another way to look at this case, however, is through the Turner I
decision, in which the Supreme Court held that cable TV companies are to
some extent engaged in First Amendment-covered “speech” when, as they
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“operate” their systems, they determine which cable channels to host. 1
Using intermediate scrutiny, the Court did not reject federal must-carry
regulations requiring hosting of certain preferred channels. Instead, the
Court distinguished both Pacific Gas & Electric and Miami Herald for three
reasons. First, the must- carry regulations were content neutral. Second,
they did not force cable operators to modify their own speech, nor were
viewers likely to associate the mandatory hosted speech with that of the
operators. And third, a cable operator’s selection of channels controlled the
flow of information into subscribers’ households, and could “thus silence the
voice of competing speakers with the mere flick of a switch.” Turner
Broadcasting Sys., Inc. v. FCC, 512 U.S. at 656,
114 S. Ct. at 2466. I find all of
these points compellingly applicable to analyzing the regulations imposed on
large social media platforms by the Texas statute before us. 2
Finally, even if there is a legitimate basis to argue that the Texas
statute may chill the platforms’ “speech,” it is not sufficient to sustain a
facial attack, as Judge Oldham explains. Case by case adjudication is a small
burden on the Goliaths of internet communications if they contend with
Davids who use their platforms.
1
I do not believe it necessary to determine whether the Texas statute survives this
facial attack on the theory of common carrier regulation and therefore do not subscribe to
that portion of Judge Oldham’s opinion. Turner I, in my view, is applicable irrespective of
overarching common carrier theory.
2
And as Judge Oldham notes, the dissenters in Turner I did not disavow the
possibility of some regulation in the monopolistic context in which most cable companies
then operated.
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Leslie H. Southwick, Circuit Judge, concurring in part and dissenting in
part:
The central question in this case is whether social media platforms
engage in First Amendment-protected expression when they moderate their
users’ content. The erudite opinion of my colleagues in the majority says no.
Although there are parts of the opinion I join, I write separately because,
fundamentally, I conclude the answer to the question is yes.
First, some points of agreement. As to the discussion of the First
Amendment, the majority is certainly correct that a successful facial
challenge to a state law is difficult. Consequently, I agree that a facial
challenge to the Disclosure and Operations provisions in Section 2 of HB 20
is unlikely to succeed on the merits. These portions of the law ought not to
be enjoined at the preliminary injunction stage.
I also agree with my colleagues that the social media Platforms
represented by NetChoice are “firms of tremendous public importance.”
The part they have chosen to play in modern public discourse is at times
detrimental to the healthy exchange of competing ideas. The argument here
is that the Platforms blatantly censor the views of those with whom they
disagree, leaving no equivalent platform available to the speakers they scorn.
The Platforms certainly have taken aggressive, inconsistent positions before
legislative, regulatory, and now judicial bodies about the relevance of the
First Amendment to their actions. They pursue maximum freedom to shape
discourse while accepting no liability for the content they host.
The legal issues before us, though, must be separated from any
disquiet irrelevant to the application of the First Amendment. My
disagreement with my colleagues lies in the application of First Amendment
principles to the anti-discrimination provisions of Section 7. The majority
frames the case as one dealing with conduct and unfair censorship. The
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majority’s rejection of First Amendment protections for conduct follows
unremarkably. I conclude, though, that the majority is forcing the picture of
what the Platforms do into a frame that is too small. The frame must be large
enough to fit the wide-ranging, free-wheeling, unlimited variety of expression
— ranging from the perfectly fair and reasonable to the impossibly biased and
outrageous — that is the picture of the First Amendment as envisioned by
those who designed the initial amendments to the Constitution. I do not
celebrate the excesses, but the Constitution wisely allows for them.
The majority no doubt could create an image for the First Amendment
better than what I just verbalized, but the description would have to be
similar. We simply disagree about whether speech is involved in this case.
Yes, almost none of what others place on the Platforms is subject to any
action by the companies that own them. The First Amendment, though, is
what protects the curating, moderating, or whatever else we call the
Platforms’ interaction with what others are trying to say. We are in a new
arena, a very extensive one, for speakers and for those who would moderate
their speech. None of the precedents fit seamlessly. The majority appears
assured of their approach; I am hesitant. The closest match I see is caselaw
establishing the right of newspapers to control what they do and do not print,
and that is the law that guides me until the Supreme Court gives us more.
What follows is my effort to work with the same material the majority
analyzed. My desire is to explain why the Platforms’ moderating third-partycontent is speech, where that speech fits into the broader body of First
Amendment jurisprudence, and how I analyze the effect of Section 7 of
HB 20 on that speech.
I. Content moderation and the First Amendment
The critical question is whether the anti-discrimination provisions in
Section 7 of HB 20 regulate non-expressive conduct or whether they regulate
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First Amendment-protected activity. The majority concludes that
“Section 7 does not regulate the Platforms’ speech at all; it protects other
people’s speech and regulates the Platforms’ conduct.” Maj. Op. at 7. The
majority’s perceived censorship is my perceived editing. The Platforms can
act with obvious bias. The lack of First Amendment protection for their
biases is not so obvious.
The majority has discussed the careful work of another circuit on the
same essential questions. In assessing a similar law, the Eleventh Circuit held
“a private entity’s decisions about whether, to what extent, and in what
manner to disseminate third-party-created content to the public are editorial
judgments protected by the First Amendment” and that “social-media
platforms’ content-moderation decisions constitute the same sort of editorial
judgments and thus trigger First Amendment scrutiny.” NetChoice, LLC v.
Att’y Gen., Fla., 34 F.4th 1196, 1212 (11th Cir. 2022). I agree.
The question we must answer is similar. In explaining my answer, I
begin with an overview of what the Platforms currently do with content and
a reminder of the obligations imposed by Section 7. The Platforms admit
they take an active role in determining which pieces of content reach
individual users: “Platforms compile, curate, and disseminate a combination
of user-submitted expression, platform-authored expression, and
advertisements.” To varying degrees, the Platforms all “control[] who can
access their platforms, what kinds of content [are] available, and how that
content is presented to users.”
Section 7 limits the ability of Platforms to engage in these activities by
imposing anti-discrimination policies. Platforms “may not censor a user, a
user’s expression, or a user’s ability to receive the expression of another
person based on: (1) the viewpoint of the user or another person; (2) the
viewpoint represented . . . ; or (3) a user’s geographic location.” Tex. Civ.
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Prac. & Rem. Code § 143A.002(a). “Censor” is a defined term that
reaches many of the Platforms’ core activities. See id. § 143A.001. The
Platforms may engage in the activities in varying frequency, but when the
Platforms engage in any content moderation based on the views represented
in the content, they “deny equal access or visibility to, or otherwise
discriminate against expression” and violate the statute. Id.
These activities native to the digital age have no clear ancestral home
within our First Amendment precedent. Their closest relative may be what
the Supreme Court held newspapers were permitted to do in Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241 (1974). I see the Platforms’ curating
or moderating as the current equivalent of a newspaper’s exercise of editorial
discretion. This view requires me to consider many of the same authorities
reviewed by the majority and explain where my conclusions diverge from
those of my colleagues. 1
I start with Miami Herald, which considered a Florida statute that
“grant[ed] a political candidate a right to equal space to reply to criticism . . .
by a newspaper.” 418 U.S. at 243. The Miami newspaper sought declaratory
1
The majority analyzes several authorities when distinguishing between
regulations on “hosting” speech and either requiring the “host” to speak or interfering
with the host’s own message. I add one more. See Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622 (1994) (“Turner I”); see Maj Op. Part III.C.1. Although I think Miami Herald is the
case closest to the matter at hand, I discuss Turner I here because it interpreted Miami
Herald and served as a basis for the decision in the Hurley case. See Turner I, 512 U.S. at
636–41, 653–57; Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston,
515
U.S. 557, 570 (1995). Additionally, as discussed below, Turner I emphasizes that, in the
modern communications context, an entity may “host” the speech of others while
simultaneously engaging in First Amendment activity of its own. See 512 U.S. at 636–37.
Further, I will not engage with the majority’s analysis of the history of prior
restraint. It is certainly a detailed review, with debatable points along the way. I limit my
analysis to the extent needed to explain why I believe the Platforms are engaged in First
Amendment-protected activity.
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relief that the law was unconstitutional. 2 The majority recounts the basic
facts of the case, then quotes the following passage:
A newspaper is more than a passive receptacle or conduit for
news, comment, and advertising. The choice of material to go
into a newspaper, and the decisions made as to limitations on
the size and content of the paper, and treatment of public issues
and public officials — whether fair or unfair — constitute the
exercise of editorial control and judgment.
Id. at 258. I wish to add, though, what the Court stated in the next sentence:
“It has yet to be demonstrated how governmental regulation of this crucial
process can be exercised consistent with First Amendment guarantees of a
free press as they have evolved to this time.” Id.
The majority sees the Court as having held that “[b]ecause a
newspaper prints a curated set of material selected by its editors, everything
it publishes is, in a sense, the newspaper’s own speech,” and that newspapers
“cannot be compelled to ‘publish that which reason tells them should not be
published.’” See Maj. Op. at 22 (quoting Miami Herald, at 256). The
majority does not, though, understand the Court to have recognized the
selection process itself as First Amendment expression. See Maj. Op. at 83.
I do. There were at least two levels of publisher speech involved. Certainly,
a traditional publisher cannot be forced to adopt speech with which they
disagree. That was the first premise that underlay the Miami Herald holding.
418 U.S. at 256. The Court went further, though. It recognized that “[t]he
choice of material to go into a newspaper, and the decisions made as to
limitations on the size and content of the paper, and treatment of public
issues and public officials — whether fair or unfair — constitute the exercise
2
418 U.S. at 245; contra Maj. Op. at 13 (including Miami Herald in the contention
that all of NetChoice’s cases “involved challenges to concrete applications of an allegedly
unconstitutional law, raised by a defendant in state court proceedings”).
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of editorial control and judgment” and that the Court did not see “how
governmental regulation of this crucial process” was consistent with the
First Amendment. Id. at 258. I read this as establishing the selection process
itself as First Amendment-protected activity.
Six years later, the Court considered the right of high school students
to engage in their own First Amendment activity at a local shopping mall.
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 77 (1980). After mall security
told the students to stop distributing political literature, the students sued the
shopping mall owner in state court for infringing on their speech rights under
the California state constitution.
Id. The students succeeded in state courts.
Id. at 78. At the Supreme Court, the owner of the shopping mall argued that
being forced to host the students’ speech by the State of California violated
both the owner’s property rights under the Fifth and Fourteenth
Amendments and free speech rights under the First and Fourteenth
Amendments.
Id. at 76–77.
In considering the shopping center owner’s assertion that Miami
Herald controlled the case, the Court stated that the precedent “rests on the
principle that the State cannot tell a newspaper what it must print,” and that
the concerns present in Miami Herald — forced speech, chilling of debate —
were not present because the plaintiffs sought “to exercise state-protected
rights of expression and petition.” PruneYard, 447 U.S. at 88. The Court,
though, made clear in a previous section of its opinion that the rights needed
to be exercised in a situation where those “activities [did] not interfere with
normal business operations.”
Id. at 78.
The Supreme Court qualified PruneYard just six years later in Pacific
Gas & Electric Company v. Public Utilities Commission of California, 475 U.S. 1
(1986) (plurality op.) (“PG&E”). As the majority in our present case
discusses, a plurality of the PG&E Court held that the California Public
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Utilities Commission’s order to allocate space in PG&E’s newsletter to third
party groups that opposed PG&E’s own messages at certain times
throughout the year violated PG&E’s First Amendment rights. Id. at 20–21.
In doing so, the plurality explained the limits of PruneYard: “notably absent
from PruneYard was any concern that access . . . might affect the shopping
center owner’s exercise of his own right to speech.”
Id. at 12. Justice
Marshall, who contributed the fifth vote and concurred in the judgment,
agreed, observing that the PruneYard mall’s owner did not want speech by
the students, but “he nowhere alleged that his own expression was hindered
in the slightest.”
Id. at 24 (Marshall, J., concurring in the judgment). The
regulations infringed on PG&E’s speech, though; the order, affording
rebuttal space to opposing parties could chill speech if PG&E found that “the
safe course [was] to avoid controversy,” and the regulations would “abridge
[PG&E’s] own rights in order to enhance the relative voice of its opponents.”
Id. at 14 (plurality op.).
The Court subsequently applied the principles outlined in those
precedents in the context of cable television. Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) (“Turner I”). The Court considered federal regulations
requiring cable operators to set aside certain channels for commercial
broadcast stations. See
id. at 630;
id. at 674 (Stevens, J., concurring in the
judgment). Most obviously, these rules burdened cable programmers “by
reducing the number of channels for which they [could] compete.”
Id. at
645. Writing for a majority of the Court, though, Justice Kennedy further
explained that cable operators also “engage in and transmit speech” when,
“[t]hrough ‘original programming or by exercising editorial discretion over
which stations or programs to include in its repertoire,’ cable programmers
and operators ‘see[k] to communicate messages on a wide variety of topics
and in a wide variety of formats.’”
Id. at 636 (quoting Los Angeles v. Preferred
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Comms., Inc., 476 U.S. 488, 494 (1986) (establishing the same)). 3 In other
words, the must-carry provisions “interfere[d] with cable operators’
editorial discretion by compelling them to offer carriage to a certain minimum
number of broadcast stations,” even though they did so in a way that did “not
depend upon the content of the cable operators’ programming.” Id. at 643–
44.
As is relevant to Part II of this opinion, the Turner I majority then
considered the level of scrutiny appropriate for the must-carry rules and
whether the laws met that level of scrutiny. Id. at 641–61. The majority
rejected the Government’s argument that rational basis scrutiny should
apply, but also decided against the cable operators’ contention that Miami
Herald and PG&E dictated strict scrutiny. Id. at 640–41, 661–62. As part of
its scrutiny analysis, the majority found three considerations present in
Turner I that were not present in Miami Herald and PG&E : (1) the rules were
“content neutral” because they were “not activated by any particular
message spoken by cable operators”; (2) the rules would not “force cable
operators to alter their own messages to respond to the broadcast
programming they are required to carry”; and (3) there was “physical
control” by the cable operators over a piece of communications
infrastructure. Id. at 655–57. These factors, together, suggested a lower tier
of scrutiny should be applied. Id. at 661–62.
In sum, First Amendment rights were exercised in two ways in
Turner I: (1) the speech of cable programmers when they transmitted their
own message, and (2) the exercise of “editorial discretion.” Id. at 636. The
3
Although the four dissenting Justices did not join this part of the opinion, they
agreed that the must-carry rules implicated the First Amendment rights of cable operators.
Id. at 675 (O’Connor, J., dissenting). They would have labeled the rules as unconstitutional
content-based restrictions on the cable operators’ speech. Id. at 685.
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regulations were held to be content neutral regulations — though
unquestionably regulations on First Amendment-protected expression —
and the case was remanded for further factfinding to determine whether
summary judgment for the Government was appropriate. Id. at 662–63; id.
at 669 (Stevens, J., concurring in the judgment). 4 The must-carry rules were
then upheld under the intermediate scrutiny standard for content neutral
regulations on speech when the case returned to the Supreme Court. Turner
Broad. Sys., Inc. v. FCC, 520 U.S. 180, 224–25 (1997) (“Turner II”).
The very next term, the Supreme Court decided Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995). In
considering whether a parade, recognized by Massachusetts’s highest court
as a public accommodation but organized by a private party, could be forced
under state law to include participation by an organization of gay, lesbian, and
bisexual individuals, the Court held that a parade was “a form of
expression.” Id. at 568. In identifying protected expression, the Hurley
Court did not stop there: “The protected expression that inheres in a parade
is not limited to its banners and songs, however, for the Constitution looks
beyond written or spoken words as mediums of expression.” Id. at 569. The
Court analyzed Turner I and Miami Herald, reiterating that “[c]able
operators . . . are engaged in protected speech activities even when they only
select programming originally produced by others,” and that “the
presentation of an edited compilation of speech generated by other
persons . . . fall[s] squarely within the core of First Amendment security . . .
4
The majority gleans a separate insight from Turner I: “Most significant for our
purposes, even the four dissenting Justices believed Congress could have permissibly
imposed more modest common carrier regulations.” See Maj. Op. at 60. I discuss common
carrier treatment below. Most significant for me, though, is that all Justices — in the
majority and dissent — understood that some degree of First Amendment scrutiny
attended the must-carry rules. See 512 U.S at 675 (O’Connor, J., dissenting).
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as does even the simple selection of a paid noncommercial advertisement for
inclusion in a daily paper.” Id. at 570 (citing Turner I,
512 U.S. at 636; Miami
Herald, 418 U.S. at 258; New York Times v. Sullivan,
376 U.S. 254, 265–66
(1964)). This selection needed not be based on any particular theme, as the
Court pointed out that one “does not forfeit constitutional protection simply
by combining multifarious voices, or by failing to edit their themes to isolate
an exact message as the exclusive subject matter of the speech.” Id. at 569–
70. This constituted the Court’s clear statement that protected expression
lies not merely in the message or messages transmitted but in the process of
collecting and presenting speech.
Finally, there is Rumsfeld v. Forum for Academic and Institutional
Rights, Inc., 547 U.S. 47 (2006) (“FAIR”). In FAIR, the Court analyzed
Miami Herald, PG&E, and Hurley in the context of a group of law schools
seeking a declaratory judgment against the enforcement of the Solomon
Amendment, a law that denied federal funding to schools that did not give
military recruiters “access to students that is at least equal in quality and
scope to the access provided other potential employers.” Id. at 54, 63
(quotation marks and citation omitted). In upholding the constitutionality of
the Solomon Amendment, the Court held that “[t]he compelled speech
violation in each of our prior cases . . . resulted from the fact that the
complaining speaker’s own message was affected by the speech it was forced
to accommodate.” Id. at 63. “[B]ecause the schools are not speaking when
they host interviews and recruiting receptions,” the regulation did “not
affect the law schools’ speech.” Id. at 64. This was because “[u]nlike a
parade organizer’s choice of parade contingents, a law school’s decision to
allow recruiters on campus is not inherently expressive” and “recruiting
services lack the expressive quality of a parade, a newsletter, or the editorial
page of a newspaper.” Id. Further, as in PruneYard, there was “little
likelihood that the views of those engaging in expressive activity would be
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identified with the [property] owner” because “[n]othing about recruiting
suggests that law schools agree with any speech by recruiters, and nothing in
the Solomon Amendment restricts what the law schools may say about the
military’s policies.” Id. at 65.
This review of the authorities provides the material for my conclusion
that the Miami Herald opinion is the most comparable to what is before us in
this appeal. When the Platforms curate their users’ feeds, which are the
behaviors prohibited in Section 7 of HB 20, they are exercising their editorial
discretion. That is a type of First Amendment-protected activity recognized
in Miami Herald, PG&E, Turner, and Hurley. The majority disagrees that
editorial discretion is a category, instead asserting that the Supreme Court
has merely “treated editorial discretion as a factual consideration supporting
their legal conclusions about the presence or absence of protected speech.”
Further, the majority concludes that “[n]either [Miami Herald nor Turner I]
implied that editorial discretion is itself a freestanding category of
constitutionally protected expression.” Maj. Op. at 35 (emphasis omitted).
Respectfully, such an interpretation disregards the Supreme Court’s
recognition that there may be more than one type of First Amendment
activity occurring by the same speaker when, for instance, an article is
selected and printed in a newspaper — or, in our context, a tweet posted or
video listed. If anything, the majority’s research and reasoning supports the
Platforms’ contention that First Amendment protections attend the
publishing process as well as the actual published content.
I do not read PruneYard and FAIR to suggest anything to the contrary.
The hosting mandate upheld by the PruneYard Court did not interfere with
speech published and adopted by the shopping mall, nor did it interfere with
a selection process for determining which speech was permitted. As the
Eleventh Circuit recently remarked, “the only First Amendment interest
that the mall owner asserted was the right ‘not to be forced by the state to use
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[its] property as a forum for the speech of others.’” NetChoice, 34 F.4th at
1215 (quoting PruneYard, 447 U.S. at 85)). PG&E and Hurley both suggest
that this lack of alleged speech activity by the PruneYard proprietor was
operative in the analysis. See PG&E, 475 U.S. at 11–12; Hurley, 515 U.S. at
580.
FAIR also demonstrates this distinction. In that case, the law schools
attempted to draw an analogy to Hurley, arguing that hosting military
recruiters unconstitutionally compelled the schools to accommodate the
military’s message. FAIR, 547 U.S. at 63. The FAIR Court distinguished
Hurley by making clear that “the expressive nature of a parade was central to
[the] holding,” and that because “‘every participating unit affects the
message conveyed by the . . . organizers,’” a law dictating inclusion of a
particular group “alters the expressive content of the parade.” Id. (quoting
Hurley, 515 U.S. at 572–73). There was no “inherently expressive” nature
to a law school’s decision to allow recruiters on campus, though. Id. at 64.
The Court explained that “a law school’s recruiting services lack the
expressive quality of a parade, a newsletter, or the editorial page of a
newspaper.” Id. The same simply cannot be said for the Platforms.
Expression is the very core of their identity and existence.
In short, although PruneYard and FAIR establish situations in which
the Supreme Court has “upheld government regulations that effectively
compelled private actors to ‘host’ others’ speech,” in neither case did the
Supreme Court uphold regulations that interfered with the private actors’
own speech. See NetChoice, 34 F.4th at 1215–16.
I see no importance to the fact that the Platforms’ moderation will
usually follow actual publication. Contra Maj. Op. at 37–38. In the
Platforms’ world, it is usually the only practical means to moderate content.
Certainly, in those instances in which a particular speaker is barred entirely,
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the discretion is exercised in advance. Platforms may also use technology to
screen out content they believe does not match their terms of service. Unlike
traditional publications, though, where editorial discretion will precede
publishing, the majority of decisions on moderating what has been posted can
only be made, as a practical matter, after the appearance of the content on the
Platform. As discussed later, Congress recognized this reality through the
passage of Section 230. I am aware of no authority that denies First
Amendment rights to otherwise-protected speech based on similar questions
about timing. Editorial discretion is exercised when it is sensible and, in many
situations, even possible to do so. The First Amendment fits new contexts
and new technologies as they arise.
II. Implications of content moderation as speech
With the understanding that the Platforms are in fact engaging in First
Amendment expression, I turn to the task of determining whether it is likely
that HB 20 impermissibly infringes on that expression.
As the Supreme Court discussed in a compelled-speech case last term,
plaintiffs bringing facial challenges usually “must establish that no set of
circumstances exists under which the [law] would be valid or show that the
law lacks a plainly legitimate sweep.” Americans for Prosperity Found. v.
Bonta, 141 S. Ct. 2373, 2387 (2021) (quotation marks and citation omitted).
“[T]he First Amendment context,” though, implicates “a second type of
facial challenge, whereby a law may be invalidated as overbroad if a
substantial number of its applications are unconstitutional, judged in relation
to the statute’s plainly legitimate sweep.” Id. (quoting United States v.
Stevens, 559 U.S. 460, 473 (2010)). Overbreadth analysis is proper in
challenges to compelled speech as in Bonta and in challenges to statutory
limitations on speech as was the case in Stevens, where the Court considered
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a law criminalizing the creation, sale, or possession of depictions of animal
cruelty, widely defined. See Stevens, 559 U.S. at 464, 474.
I join the majority in concluding that the overbreadth doctrine is the
proper mode of analysis for this case. See Maj. Op. Part III.A. The question
is whether “a substantial number of [HB 20’s] applications are
unconstitutional, judged in relation to the statute’s plainly legitimate
sweep.” Bonta, 141 S. Ct. at 2387.
Because the First Amendment applies, we must decide the applicable
level of scrutiny. I do not have confidence about the level of scrutiny that the
Supreme Court will one day apply to activities such as those engaged in by
these platforms. It is sufficient now to accept the majority’s conclusion that
intermediate scrutiny applies to Section 7. 5 I can agree because Section 7’s
restrictions on the Platforms’ speech do not survive such scrutiny.
Intermediate scrutiny analysis in the First Amendment context allows
content neutral regulations upon the finding of three elements:
A content-neutral regulation will be sustained . . . [1] if it
furthers an important or substantial governmental interest; [2]
if the governmental interest is unrelated to the suppression of
free expression; and [3] if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the
furtherance of that interest.
Turner I, 512 U.S. at 662 (quoting United States v. O’Brien,
391 U.S. 367, 377
(1968)).
5
See also Netchoice LLC, 34 F.4th at 1223–27 (acknowledging that strict scrutiny
may apply to several provisions of a similar law but analyzing those provisions under
intermediate scrutiny since the provisions were unlikely to withstand even the lower tier of
scrutiny). I also question whether at least some of Section 7’s provisions are content
neutral.
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Texas can satisfy the first two elements if it establishes that Section 7
of HB 20 serves an important or substantial government interest unrelated to
the suppression of free expression. Certainly, this does not mean Texas must
adopt the “least restrictive alternative,” a test for a different level of scrutiny,
but these elements are significant demands. In Turner II, a plurality of the
Court referred to three substantial governmental 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 market for television programming.”
520 U.S. at 189 (quotation marks and citation omitted); see
id. at 226 (Breyer,
J., concurring in part) (accepting rationales 1 and 2 but recognizing that must-carry regulation “extracts a serious First Amendment price. It interferes
with the protected interests of the cable operators to choose their own
programming.”).
My able colleagues in the majority argue the second interest applies
here — “promoting the widespread dissemination of information from a
multiplicity of sources.” Unlike in Turner, though, the Texas statute strives
to promote speech by first targeting the content of others’ speech, i.e., it
prohibits Platform “censorship” on the basis of viewpoint. (I acknowledge
that, yet again, the fundamental division between my view and that of the
majority is whether the Platforms are “speaking” when they exercise their
editorial discretion.) Texas argues this satisfies the interest recognized in the
Turner opinions because it will increase the multiplicity of views on the
Platforms — arguably a good result. That justification, though, alters the
interest that Turner actually recognized.
The Turner must-carry rules did not directly target cable-operators’
editorial discretion. Instead, the must-carry rules supported the interest of
the non-cable subscribing public in accessing information without needing to
use the cable operators’ platforms. The regulations sought to improve the
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viability of traditional commercial broadcast media in order “to prevent too
precipitous a decline in the quality and quantity of programming choice for
an ever-shrinking non-cable-subscribing segment of the public.” Turner II,
520 U.S. at 226 (Breyer, J., concurring) (adding the fifth vote to affirm the
Government’s interest in “promoting widespread dissemination of
information from a multiplicity of sources”). Indeed, any interference with
the cable operators’ speech to promote the traditional broadcaster’s ability
to speak was the “price” and not the purpose of the regulation. Id. Here, of
course, interference with expressing views is both the purpose and the price.
HB 20 directly interferes with the editorial choices the Platforms make —
which I consider First Amendment expression — as both a means and end.
In Turner, the cable operators could displace any programming they wanted
in order to make room for local commercial broadcast media, thereby helping
local broadcast stations survive that new technology. See Turner I, 512 U.S.
at 636–37 (acknowledging the set-aside for local broadcasters and that it
would be “more difficult for cable programmers to compete for carriage on
the limited channels remaining”).
Had the justification for the must-carry rules been only a
governmental interest of having cable operators express additional views, the
rules should have been struck down because of Miami Herald. The Court has
recognized that the state “may not burden the speech of others in order to
tilt public debate in a preferred direction.” Sorrell v. IMS Health Inc., 564
U.S. 552, 578–79 (2011); see also Buckley v. Valeo,
424 U.S. 1, 48–49
(recognizing that there is no interest in “restrict[ing] the speech of some
elements of our society in order to enhance the relative voice of others” as
the First Amendment “was designed to secure the widest possible
dissemination of information from diverse and antagonistic sources”
(quotation marks and citation omitted)).
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I agree with the Eleventh Circuit when it reiterated the message from
Miami Herald: “preventing unfairness to certain users or points of view isn’t
a substantial government interest; rather private actors have a First
Amendment right to be ‘unfair’ — which is to say, a right to have and express
their own points of view.” NetChoice, 34 F.4th at 1228 (quotation marks and
citation omitted). That is the case here.
Further regarding the relevance of unfairness, the majority considers
it extraordinary that counsel for one of the Platforms at oral argument
answered a question from the court by agreeing a Platform could, as the
majority opinion states, “ban all pro-LGBT speech for no other reason than
its employees want to pick on members of that community.” Maj. Op. at 2.
Extreme hypotheticals necessarily lead to extreme answers when a First
Amendment right is involved. The First Amendment does not moderate its
protections based on the content of the speech, with irrelevant exceptions.
In no manner am I denying the reasonableness of the governmental
interest. When these Platforms, that for the moment have gained such
dominance, impose their policy choices, the effects are far more powerful and
widespread than most other speakers’ choices. The First Amendment,
though, is not withdrawn from speech just because speakers are using their
available platforms unfairly or when the speech is offensive. The asserted
governmental interest supporting this statute is undeniably related to the
suppression of free expression. The First Amendment bars the restraints.
Setting aside that the purpose of Texas’s law is related to suppressing
First Amendment activity, I also believe there is a strong likelihood that
Section 7 burdens “substantially more speech than necessary in order to
further [Texas’s] legitimate interests.” See Turner I, 512 U.S. at 662. The
scope of conduct prohibited by Section 7 is broad:
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A social media platform may not [block, ban, remove,
deplatform, demonetize, de-boost, restrict, deny equal access
or visibility to, or otherwise discriminate against] a user, a
user’s expression, or a user’s ability to receive the expression
of another person based on [the user’s viewpoint, the
viewpoint represented, or geographic location].
Tex. Civ. Prac. & Rem. Code, §§ 143A.001–002.
If Texas’s interest is in “protecting the free exchange of ideas and
information in this state,” prohibitions (for example) on demonetization, de-boosting, “denying equal access or visibility to” or “otherwise
discriminat[ing] against,” likely go too far. If the goal is only to make more
speech available, there is no reason that the Platforms should have to publish
— as an extreme example — pro-Nazi expression, while monetizing,
recommending, and giving equal treatment to such content as might be given
to anti-Nazi expression. When Platforms elevate certain third-party content
above other third-party content, they engage in their own First Amendment
expression, and the broad-based prohibition against engaging in this editorial
discretion whenever “viewpoint” is at issue is hardly narrow tailoring that
“does not burden substantially more speech than necessary” to further a
legitimate interest. See Turner I, 512 U.S. at 602.
III. Common carrier designation, Section 230, and other rationales for
abrogating First Amendment rights
One of my colleagues concludes that common carrier classification of
the Platforms and Section 230 provide further support for the
constitutionality of HB 20. I address both arguments.
A common carrier designation, which I doubt is appropriate, would
not likely change any of my preceding analysis. Few of the cases cited in the
discussion on common carrier law concern the intersection of common
carrier obligations and First Amendment speech rights. The only precedents
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that do discuss this intersection reinforce the idea common carriers retain
their First Amendment protections for their own speech. See id. at 636.
Section 230 also does not affect the First Amendment right of the
Platforms to exercise their own editorial discretion through content
moderation. My colleague suggests that “Congress’s judgment” as
expressed in 47 U.S.C. § 230 “reinforces our conclusion that the Platforms’
censorship is not speech under the First Amendment.” Maj. Op. at 39. That
opinion refers to this language: “No provider or user of an interactive
computer service” — interactive computer service being a defined term
encompassing a wide variety of information services, systems, and access
software providers — “shall be treated as the publisher or speaker of any
information provided by another content provider.” 47 U.S.C. § 230(c)(1).
Though I agree that Congressional fact-findings underlying enactments may
be considered by courts, the question here is whether the Platforms’ barred
activity is an exercise of their First Amendment rights. If it is, Section 230’s
characterizations do not transform it into unprotected speech.
The Platforms also are criticized for what my colleague sees as an
inconsistent argument: the Platforms analogize their conduct to the exercise
of editorial discretion by traditional media outlets, though Section 230 by its
terms exempts them from traditional publisher liability. This may be exactly
how Section 230 is supposed to work, though. Contrary to the contention
about inconsistency, Congress in adopting Section 230 never factually
determined that “the Platforms are not ‘publishers.’” Maj. Op. at 41. As
one of Section 230’s co-sponsors — former California Congressman
Christopher Cox, one of the amici here — stated, Section 230 merely
established that the platforms are not to be treated as the publishers of pieces
of content when they take up the mantle of content moderation, which was
precisely the problem that Section 230 set out to solve: “content
moderation . . . is not only consistent with Section 230; its protection is the
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very raison d’etre of Section 230.” In short, we should not force a false
dichotomy on the Platforms. There is no reason “that a platform must be
classified for all purposes as either a publisher or a mere conduit.” In any
case, as Congressman Cox put it, “because content moderation is a form of
editorial speech, the First Amendment more fully protects it beyond the
specific safeguards enumerated in § 230(c)(2).” I agree.
IV. Other preliminary injunction factors
In reviewing the grant of a preliminary injunction, this court considers
three other factors in addition to the likelihood of success on the merits: the
substantial threat of irreparable harm should the injunction not be granted,
the balance of harms, and the public interest. See Atchafalaya Basinkeeper v.
United States Army Corps of Eng’rs, 894 F.3d 692, 696 (5th Cir. 2018). “Loss
of First Amendment freedoms, even for minimal periods of time, constitutes
irreparable injury.” Ingebretsen ex rel. Ingebretsen v. Jackson Pub. Sch. Dist.,
88 F.3d 274, 280 (5th Cir. 1996). Accordingly, to prevent the Platforms from
establishing that the balance of such harms weighs in their favor, Texas
“would need to present powerful evidence of harm to its interests.” See
Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 298 (5th Cir. 2012).
Further, “[i]njunctions protecting First Amendment freedoms are always in
the public interest.” Id. (quotation marks and citation omitted). Because I
see the enforcement of the anti-discrimination provisions of Section 7 of
HB 20 as likely unconstitutional infringements on First Amendment
freedoms, these factors would also favor preliminary relief against those
provisions.
V. Conclusion
This is a difficult case. We are seeking the closest analogies among
the precedents. The Supreme Court will, as always, have the final word. For
now, I conclude Section 7’s anti-discrimination provisions are an
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unconstitutional infringement on the Plaintiffs’ rights to edit or remove, after
the fact, speech that appears on their private Platforms. My understanding
of their rights does not mean that “email providers, mobile phone companies,
and banks could cancel the accounts of anyone who sends an email, makes a
phone call, or spends money in support of a disfavored political party,
candidate or business,” as suggested by the majority. It does mean that when
the social media Platforms who are in the business of speech make decisions
about which speech is permitted, featured, promoted, boosted, monetized,
and more, they are engaging in activity to which First Amendment protection
attaches. Balance and fairness certainly would be preferable, but the First
Amendment does not require it.
I concur with the judgment in Part IV of the majority’s opinion. I
respectfully dissent from the remainder.
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