Texas and Its Amici Try to Justify Censorship in Their NetChoice v. Paxton Fifth Circuit Briefs

March 28, 2022 · by · in Content Regulation, Derivative Liability

As you recall, in December, a federal district court enjoined most of HB 20, Texas’ so-called “social media censorship” law. As expected, Texas appealed the ruling to the Fifth Circuit. This blog post recaps the Texas brief and the 11 supporting amicus briefs. A case library is at the end.

Reminder: HB 20 claims it is a “social media censorship” law. Texas and its amici argue that social media services engage in “censorship” when they exercise editorial discretion over third-party content. Opponents, including me, argue that the law’s title is unintentionally accurate, because the law–through government compulsion–“censors” social media services by overriding their editorial discretion. If you believe a private publisher cannot illegally “censor” third-parties because only the government “censors,” then the arguments from Texas and its amici will sound both stupid and hypocritical (i.e., the solution to “censorship” by private publishers is for government to censor those private publishers…?).

Texas’ Appellant Brief

The state’s brief comes out of the gate with its first lie on line two. The state claims that the law regulates ONLY Facebook, Twitter, and YouTube because “Plaintiffs represented below that only Facebook, YouTube, and Twitter are affected by the Texas law at issue here. ROA.1306.”

If true, that representation would be a massive concession by the plaintiffs–but they didn’t make it. I pulled ROA.1306 (highlight added):

This is Texas’ deposition of Carl Szabo, NetChoice’s general counsel. Texas’ counsel asks him which NetChoice members are governed by HB20. He (correctly) responds that, due to the vague statutory definitions, “many” of NetChoice’s members “may or may not be covered.” He then says that “at least” YouTube, Facebook, and Twitter are covered by the law.

So, Szabo said AT MINIMUM the law applies to those three entities. The state claims NetChoice said ONLY those three entities are covered. This is not just a reading comprehension failure. It’s a lie.

Why does this lie matter? The state’s false claim has several benefits to its litigation posture, including:

  • The state can claim the law only affects “Big Tech,” even though the law likely reaches dozens or hundreds of other services who are never regarded as “Big Tech.” In fact, I believe no one–not the state, not Carl or NetChoice, not anyone else–knows exactly who is covered by the law. The panel should understand the scope definition is a big part of the problem, and the state magically tried to eliminate the issue entirely.
  • By saying the law reaches only three entities, it downplays the law’s consequences. It implies that the law wouldn’t have industry-changing consequences, when in fact it would. Further, the lie signals that law has a tidy, clean, predictable, and tailored boundary, which boosts the state’s First Amendment arguments by reducing the law’s apparent vagueness and overreach.
  • By trimming away the other affected entities, the state can showcase anecdotes from the three entities and claim that those anecdotes are representative of all regulated entities. If the state had to defend the law’s application to the dozens or hundreds of other entities, it would reinforce that the anecdotes are cherry-picked examples, not rigorous evidence.
  • By focusing the panel on three of the biggest social media services, the state can ignore the statutory confusion when the law is applied to dozens or hundreds of other entities with different architectures, business practices, agendas, audiences, and financial resources. Again, this helps the state’s First Amendment arguments, by suggesting the law is better tailored than it really is.

If I were a judge and I learned that a litigant had grossly mischaracterized evidence like this, I would be very, very angry. This deceit is well outside ordinary bounds of zealous advocacy.

Some other standout parts of the brief:

The brief says: “HB 20’s anti-discrimination rule is just one item from the menu of regulations that a state can impose on the Platforms under this historic, well-grounded common carriage framework.” 🚨🚨🚨 They are saying the quiet part out loud. This is a clearly stated and unambiguous warning of regulators’ future intent. If a state can get social media services characterized as “common carriers,” every legislature can, and will, regulate virtually every aspect of social media enterprises without First Amendment limits. You know what other countries can regulate social media without restriction? Russia, China, Turkey, etc. Having seen how Russia and China virtually eliminated free expression on social media, and knowing that Texas and other states think that’s GOALZ, this lawsuit’s stakes couldn’t be higher.

The brief characterizes the law’s anti-discrimination provision as a “hosting rule.” This is ambiguous because the law doesn’t compel services to host content at all. More importantly, most of HB 20 restricts how services promote content. Does the state’s emphasis on the so-called “hosting rule” mean the state is abandoning its defense of the law’s content promotion restrictions? If so, I hope the panel will expressly acknowledge those concessions.

The so-called “hosting rule” is indefensible because “hosting” and “publication” are the same thing, so mandating “hosting” and mandating “publishing” are the same thing. To get around this problem, the state argues that mandatory hosting only regulates conduct, not content: “Laws requiring commercial entities to neutrally host speakers generally do not even implicate the First Amendment because they do not regulate the host’s speech at all—they regulate its conduct.” This is a well-used but always corrupt pro-censorship tautology, i.e., “We’re not regulating what content the defendant publishes. We’re just regulating their conduct of publishing content,” as if those are different things.

The state’s brief (and several of the amicus briefs) also play loose with their definitions of “discrimination.” “Discrimination” can be based on legally protected criteria, such as race or gender, or it can be any differential treatment between any customers (such as “price discrimination”). The state attempts to prop up the broad definition of “discrimination” by invoking legal principles involving discrimination based on protected classifications.

With respect to HB 20’s transparency obligations, the state claims: “Disclosure rules that require commercial enterprises to convey truthful information to the public about their products almost never offend the First Amendment. We live surrounded by the upshot of that reality everyday—with calorie counts, warning labels, SEC disclosures, and the like.” As I explained in my Mandating Editorial Transparency article, this frequently advanced argument makes a false equivalency because general commercial disclosures are qualitatively different from mandatory editorial disclosures. An excerpt from my article:

As a starting point, publishers must comply with laws that apply to businesses generally. For example, publishers must comply with employment laws and tax laws just as other businesses do. In the same vein, publishers must comply with many generally applicable mandatory disclosure laws. For example, publicly-listed publishers must file disclosures with the Securities & Exchange Commission consistent with securities laws; publishers must file income tax forms; and publishers must file reports about their lobbying activities.

When a general disclosure law prompts a company to change its behavior (which sometimes is the legislature’s hope or intent), those changes don’t necessarily impact the company’s speech outputs. For example, if a food-labeling law induces a food manufacturer to modify the amount of saturated fat or sugar in its product, the product change did not affect the manufacturer’s freedom of speech. In contrast, if an editorial transparency law causes a publisher to change its editorial practices, then the law has speech effects that are absent in ordinary product configuration decisions. Indeed, the legislature may expressly intend for the mandatory editorial transparency law to motivate the publisher to change its speech.

Furthermore, with general disclosure obligations, regulators can confirm the disclosures’ accuracy without reviewing editorial-related source data. For example, determining the accuracy of a publisher’s securities filing or tax return should not require investigating the publisher’s editorial decision-making process. In contrast, validating editorial disclosures necessarily requires regulatory scrutiny of editorial decisions, with the associated unwanted effects on the publisher’s speech.

I’ll close my discussion about the state’s brief by noting some atmospherics:

  • The brief calls Section 230 “notorious.”
  • The brief contains 47 references to Section 230 (neat numerology), even though the district court opinion didn’t rely on Section 230 at all. I can’t stress this enough–the state desperately wants to make this a case about Section 230, when the only issues on appeal pertain to the First Amendment.
  • The brief contains 7 shoutouts to Justice Thomas, but I wonder if his credibility has taken a hit.
  • “the Platforms’ loudest champions do not believe in free speech at all. See Mary Anne Franks…” 🤣 Anyone familiar with Franks’ oeuvre would characterize her as a critic of Internet services. Calling her a social media “champion” may defame her.
  • The state still want to ride PruneYard: “the Platforms here are like the mall in PruneYard.”
  • “There is a fortune waiting for any company that creates a successful alternative to the Platforms. It is quite telling that none have yet succeeded.” If the services are giving consumers more of what they want than the competitors are, doesn’t that severely undermine the states’ justifications for intervention?
  • The state had the audacity to cite Orwell’s 1984 in support of its arguments, with zero self-awareness that 1984 is a cautionary tale against HB 20.
  • Similarly: “The Platforms are forcing the once unthinkable question whether the First Amendment protects the destruction of free speech.” There is some destruction of free speech taking place here, and it’s not the “platforms” doing it.

The Pro-Texas Amicus Briefs

[Note 1: if the NetChoice v. Moody 11th Circuit appeal provides a preview, the Knight First Amendment Institute will file an amicus brief nominally supporting the appellees, but very much against the appellees’ interests.]

[Note 2: three of the amicus briefs are from people affiliated with Columbia University–over 1,700 miles away from Austin, Texas. There must be something (bad) in the water uptown.]

[Note 3: I counted 21 lawyers listed as amici counsel (one brief, Goldstein’s, filed pro se). Of the 21 counsel, 19 appear to be men. The four individual amici (Goldstein, Hamburger, Landry, and Mamet) are all men too. I didn’t attempt to reverse-engineer the racial composition of amici counsel, but I have a hunch what that breakdown would reveal.]

Babylon Bee, Giganews, and Others. This team has previously filed error-riddled amicus briefs in the lower court and the Florida litigation. Some errors in this brief:

  • HB20 allows “for more competitive distinction among different platforms.” This is wrong. Reducing services’ discretion over how to moderate content standardizes the rules across the industry. Jess Miers and I mention that dynamic here.
  • “H.B. 20 is a non-partisan bill that protects consumer welfare.” The bill was expressly adopted for partisan reasons, and the law’s partisanship is apparent from its amici’s identity. Plus, as Miers and I explained, the law undermines, not promotes, consumer welfare by raising consumer costs to access information.
  • “Social media platforms suppress conservative viewpoints in particular.” Remind me again about those non-partisanship arguments? Also, allegations of anti-conservative bias have been disproven repeatedly in empirical studies. See, e.g., Twitter’s study (conservative views actually get an unintended bump on Twitter).
  • “H.B. 20’s entire goal and purpose is to ensure everyone – regardless of viewpoint – gets to participate.” This is not true. For example, the law makes distinctions between certain classes of speech. Most importantly, the law reifies existing power structures, which drowns out or drives away people with minority characteristics. My article with Miers also explains this.

Center for Renewing America/Claremont Institute. The Claremont Institute center is associated with John Eastman, and he’s listed as a counsel on this brief. You may recall that Eastman provided Trump with a roadmap of how to overthrow our democracy. As soon as I saw his name, I stopped reading the brief.

Columbia Students. John Stuart Mill’s On Liberty, repackaged into an amicus brief.

Florida and Other #MAGA States. The brief contains 26 references to Rumsfeld v. FAIR, 7 references to PruneYard, and 6 references to Justice Thomas.

Leonid Goldstein. A pro se brief. It’s as lucid as you’d expect from a non-lawyer who thinks HB 20 is swell.

Prof. Philip Hamburger. A Columbia University Law professor. He’s based in NY but claims “he looks to the Texas social media law to preserve at least one jurisdiction that is free from viewpoint discrimination by the major social media platforms.” Unless he’s planning to lateral to a Texas law school, I’m not sure how he benefits from that? Some other lowlights from his brief:

  • “for anti-discrimination purposes, common carriers (and the associated category of public accommodations) have been defined more broadly.” What?? Common carriers are subject to categorical anti-discrimination principles, while public accommodations are only subject to restrictions on discrimination based on protected classifications. This is the same conflation made by the state’s brief.
  • “No one doubts that social media companies are communications firms that carry expression, and communications companies have long been regulated as common carriers.” I doubt. Also, I don’t understand what a “communication firm” is and how it differs from “publishers.”
  • “a small bus company can be treated as a common carrier.” I thought railroads and shopping malls were the go-to analogies. Now Facebook is like the Muni?
  • “If [social media] not [sic] are not common carriers and so are not subject to anti-discrimination regulation, then that also must be true for telephones, radio, and other information conduits.” It might be helpful to reread what the Supreme Court said in Reno v. ACLU about this very argument.
  • “The Platforms want to have their cake and eat it too. They cannot claim that they convey only third-party speech for section 230 immunity and then claim that speech as their own for First Amendment purposes.” Legislatures may freely enact laws within outer boundaries set by the Constitution. Thus, it’s routine for an entity to have minimum Constitutionally protected rights while simultaneously getting non-Constitutionally required privileges from a legislature. That doesn’t mean “platforms” are overeating cake. Congress provided the cake.
  • “a newspaper is speaking for itself when it makes editorial decisions about letters and other outside contributions. In contrast, the Platforms open up their conduits to members of the public to convey their speech.” This disregards each service’s editorial objectives as expressed through their TOSes and content moderation. See this article.
  • Holocaust denial “is part of free debate.” 😲
  • “the Platforms have already accommodated the demands for censorship made by China, so they should not have undue difficulty meeting Texas’s demand for uncensored expression.” 😲 Using China’s censorship as support for Texas’ mandates is an odd way to argue the law is constitutional. It’s nevertheless an unintentionally apropos analogy.

Heartland Institute (“known for its rejection of the scientific consensus on climate change and the negative health impacts of smoking“)/American Principles Project (they also favor a return to the gold standard). This brief makes the stupid argument that all plaintiffs are judicially estopped from claiming that their content moderation decisions are protected by the First Amendment based on the litigation positions some services have taken in Section 230 litigation.

Dr. Donald Landry. A Columbia University medical professor. Citing to the Church’s treatment of Galileo, he says “the censorship of outlying scientific ideas is a profound danger for science and ultimately our society.” Some examples he thinks are comparable to the Church’s suppression of heliocentrism:

  • By “censoring” hydroxychloroquine, Facebook made consumers too interested in taking it. Apparently, this is a variation of the Streisand Effect. Maybe call it the Ivermectin Effect.
  • 90% of doctors got the COVID vaccine, but “whatever the truth [about the vaccine], it will not be known without freedom of debate.”

Apparently, the best way to advance medicine is to not exercise editorial discretion to reduce bad medical information, even if it kills a lot of people….? I guess don’t understand the Hippocratic Oath.

David Mamet. An excellent example of why people should stick to their swimlanes. Techdirt’s deconstruction.

Moms for Liberty and Institute for Free Speech. Candeub Candeubing after the district court bounced his so-called “expert” report for making legal arguments.

The Texan. As a traditional news publisher, the Texan admits it isn’t covered by HB 20, so exactly what is it doing here? Railing against Section 230, of course: Plaintiffs “seek Section 230 protection and First Amendment protection and zero additional legislatively imposed burdens. The Court should decline to build them this legal Eden….if Congress could impose the viewpoint and policy requirements via Section 230, then there is no constitutional bar to Texas doing so via H.B. 20.” [Any number of GIFs could be appropriate here. I’m partial to the Nathan Fillion speechless GIF.]

Case library (see also NetChoice’s library and the Court Listener page):