My SCOTUS Amicus Brief on Texas HB20’s Unconstitutional Transparency Requirements

May 19, 2022 · by · in Content Regulation, Derivative Liability

Last week, the Fifth Circuit Court of Appeals dissolved the existing injunction against Texas HB 20, the so-called social media censorship law, in a one-sentence order. The entire order says: “IT IS ORDERED that appellant’s opposed motion to stay preliminary injunction pending appeal is GRANTED.”

This order shocked the world for several reasons. First, everyone knows that HB 20 is unconstitutional. Indeed, the state has made numerous concessions through the course of the litigation about parts of the law it could not defend, (The Fifth Circuit’s order nevertheless made those unconstitutional provisions now enforceable). Second, the Fifth Circuit overturned the status quo (the current injunction) without any explanation. This is a massive affront to the rule-of-law. If a court changes the status quo, everyone deserves an explanation about why. (An irony worthy of Alanis Morissette: HB 20 requires that social media platforms explain their decisions, but the Fifth Circuit made that legal requirement effective without explaining its decision. One of those “do as I say, not as I do” moments. #MAGA). Plus, without an explanation of the panel’s reasoning, it makes any appeal of the order difficult. Third, the panel made the order effective immediately. It didn’t give a phase-in period or a window of time for further appeals before springing the law onto an unprepared Internet. This caused a lot of avoidable chaos.

NetChoice/CCIA had some options in response to the shocking Fifth Circuit order. The plaintiffs could have sought en banc intervention. However, the Fifth Circuit has become a hotbed of very strange legal rulings. The plaintiffs could have gone back to the district court to ask for a new injunction on different grounds. The district court only ruled on First Amendment grounds, so it can still an injunction on other grounds, like Section 230 or the Dormant Commerce Clause. However, without an explanation from the Fifth Circuit, the district court judge inevitably would be reluctant to issue a new injunction that doesn’t account for the panel’s concerns.

So the plaintiffs decided to seek emergency relief from the US Supreme Court. This puts the case into the Supreme Court’s notorious shadow docket, where the procedures are less clear than the standard appeals process. Per shadow docket rules, the appeal went to Justice Alito. He requested that Texas file a response brief, which it filed yesterday. Alongside the parties’ briefs, numerous amicus briefs were filed on both sides. I will review all of those briefs in a separate post soon.

In this post, I want to highlight the amicus brief I filed in support of NetChoice/CCIA. Based on my forthcoming article, The Constitutionality of Mandating Editorial Transparency, the brief focuses exclusively on the mandatory transparency pieces of HB 20. From the brief’s introduction:

Legislatures do not require traditional publishers, such as newspapers or book publishers, to disclose details about their editorial operations and decisions. For example, no laws require book publishers to explain to prospective authors why they rejected certain manuscripts or newspapers to disclose statistics about how many letters to the editor and op-eds they received and chose not to publish. Indeed, any such legislative mandates would undoubtedly violate the First Amendment’s protections of speech and press freedoms.

Yet, Texas enacted a “social media censorship” law called HB 20, with the completely unprecedented requirement that online publishers1 make disclosures about their editorial operations and policies that no offline publishers have been required to make—or could be required to make. These disclosures are qualitatively different from other types of constitutionally permissible commercial disclosure requirements because they will affect online publishers’ editorial decisions. These mandates also carry discovery implications that will further distort online publishers’ editorial decisions by entangling the government into every aspect of the publishers’ editorial operations. Such inevitable distortions of publishers’ editorial decisions and operations are intolerable under the First Amendment

Knowing that the justices and clerks are working quickly in response to an emergency request, we deliberately kept the brief short (less than 2,500 words). If you want more details, read the article.

To get the brief written and filed, I worked with a team at O’Melveny & Myers, led by Tod Cohen. There is no way I could have filed anything with the Supreme Court on such a short turnaround without their help. We started working on the brief on Saturday afternoon and filed it on Tuesday afternoon, so the team gave up their weekend time and pushed aside other urgent matters to make this happen. THANK YOU to O’Melveny & Myers for their essential contributions to the brief.

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