My Amicus Brief in Moody v. NetChoice and NetChoice v. Paxton

In collaboration with superstar lawyer Michael Kwun, I submitted an amicus brief to the U.S. Supreme Court against the Florida and Texas social media censorship laws. I had previously filed an amicus brief supporting certiorari in the Florida case, and the amicus brief on the merits iterates on the arguments made there. Check it out!

(I had also filed a brief supporting the Supreme Court’s emergency intervention in NetChoice v. Paxton after the Fifth Circuit reversed the injunction of the Texas law without any explanation).

Although the Florida and Texas social media censorship laws have dozens of problematic aspects, the amicus brief on the merits focuses solely on the laws’ requirement that social media platforms must explain their editorial decisions to users (the “explanations” requirement). The amicus brief explains how explanations requirements facilitate censorship. The amicus brief then explains why the Zauderer level of Constitutional scrutiny doesn’t apply to explanations obligations. The stakes are quite high on that point, because this opinion could prompt the Supreme Court to walk back the Zauderer scrutiny or at least rein in lower courts’ overapplication of it (what it should do), kick the can on the Zauderer issue by saying it doesn’t apply in this circumstance (an acceptable outcome, but the issue will come back to them soon in challenges to compelled editorial transparency laws), or extend Zauderer to apply to a compelled editorial transparency obligation and unleash new opportunities for censorship-minded regulators.

The amicus brief abstract:

This amicus brief supports NetChoice and CCIA in the Supreme Court appeals of Moody v. NetChoice and NetChoice v. Paxton. The brief focuses on the provisions in the Florida and Texas social media censorship laws that require social media platforms to provide “explanations” of their content moderation decisions to their users. The brief explains how these explanations obligations effectuate censorship. The brief also explains why laws compelling publishers to explain their editorial decisions do not qualify for the relaxed Constitutional scrutiny test that the Supreme Court articulated in Zauderer v. Office of Disciplinary Counsel.

Selected Posts on Compelled Editorial Transparency

• I Filed an Amicus Brief Against New York’s Editorial Transparency Law
• New York’s Mandatory Editorial Transparency Law Preliminarily Enjoined–Volokh v. James
• Rounding Up Some Recent Editorial Transparency Developments
• My New Article Drops a Truth Bomb on Zauderer and Censorial Efforts to Mandate Editorial Transparency
• The 5th Circuit Puts the 1st Amendment in a Blender & Whips Up a Terrible #MAGA Kool-Aid–NetChoice v. Paxton
• A Short Explainer of Why California’s Mandatory Transparency Bill (AB 587) Is Terrible
• Quick Links from the Past Year, Part 8 (Editorial Transparency)
• Will California Clone-and-Revise Some Terrible Ideas from Florida/Texas’ Social Media Censorship Laws? (Analysis of CA AB587)
• My SCOTUS Amicus Brief on Texas HB20’s Unconstitutional Transparency Requirements
• New Article: “The Constitutionality of Mandating Editorial Transparency”

Articles:

• The Constitutionality of Mandating Editorial Transparency
• Zauderer and Compelled Editorial Transparency