Catching Up on NetChoice v. Paxton, the Challenge to Texas’ Social Media Censorship Law

November 29, 2021 · by · in Content Regulation, Derivative Liability

Earlier this year, Texas enacted a brazenly censorial #MAGA bill, HB 20. My blog post analyzing the law. The law goes into effect on December 2 if it’s not enjoined, so a court decision should come in the next few days (this morning, the court is hearing oral arguments). I’m keeping my fingers crossed that the judge will recognize this as an easy case.

Some high/lowlights from the filings:

Preliminary injunction motion

H.B. 20 prohibits “censorship” based on “viewpoint”—and since almost all expression online has a viewpoint, H.B. 20 would sweepingly ban covered online platforms from moderating user-provided content. Thus, it would compel those platforms to disseminate anything and everything with a “viewpoint,” including pro-Nazi speech, medical misinformation, terrorist propaganda, and foreign government disinformation. It exposes those platforms to the exact liability that Congress protected against in enacting Section 230. And it both regulates how the targeted websites disseminate speech to and from users around the globe—regardless of their connection to Texas…

H.B. 20’s prohibition on “censorship” thus completely alters the covered online platforms’ products. Not only are covered platforms required to disseminate content they find objectionable, but they are also required to disseminate that objectionable content no differently than other, non-objectionable content on their websites and applications. H.B. 20 therefore puts the covered platforms to an unconstitutional choice: (1) disseminate content that is contrary to the platforms’ community standards, thereby altering the very nature of the expressive communities they seek to foster; or (2) remove broad categories of unobjectionable content (on entire topics, for example) to avoid improperly discriminating based on “viewpoint”—an outcome that would “burn[] the house to roast a pig.”

One point to note: the plaintiffs did not challenge the law’s pro-spam provisions, though I’m not aware of any email service provider that plans to adhere to the law. As a result, it will be interesting to see if and when the Texas AG puts that provision in play. It could be as early as later this week.

Texas AG’s response brief

I find briefs like this impossible to read because I recognize each word as an English word, but the brief’s sequence of words aren’t any version of English I recognize. For example, from the intro: “Texas has designated the Platforms common carriers; they no longer have a right to discriminate against different views in their role as public conduits.” That’s a word salad to me. It continues:

First, it assumes the Platforms are not common carriers – they are. Second, it assumes that H.B. 20 prohibits any content moderation – it does not. Third, it assumes that, even if they are not common carriers and H.B. 20 prohibits content moderation, that their rotely applied engagement algorithms constitute speech – they do not. Fourth, it assumes that, even if they are not common carriers and algorithms are speech, that speech is not commercial speech for which a substantial government interest justifies restricting it – it is, and it does.

This kind of argumentation is how a government actor disingenuously repackages censorship. It remixes English words until they no longer make any sense at all.

The brief is filled with many other jaw-droppers. I can’t blog them all. The plaintiffs’ reply brief hammers down many of the worst. To me, perhaps the most shocking/unnecessary jaw-dropper was AG arguing that Section 230(c)(2)(A) only restricts damages, not injunctions. The statutory language is “shall [not] be held liable,” but sure, that only applies to damages. 🙄

Candeub Report

The brief relies heavily on an “expert” report from Adam Candeub. Life is too short to spend precious time reading the report, though I did find the plaintiffs’ motion to strike interesting. Some of the sharpest edges:

  • “Candeub’s report reads like a law review article or legal brief, which is unsurprising given that Candeub himself is counsel of record for an amicus curiae brief in the Florida case involving a similar state statute”
  • “Defendant hired a law professor to pronounce a self-serving and incorrect legal standard that the Defendant now claims applies to the issues in the case”
  • “Candeub’s report is an extended exercise in question-begging…Candeub’s legal analysis is also internally inconsistent”
  • “Candeub does not really mean that Plaintiffs’ members are common carriers; he wishes they would be treated as common carriers”
  • “Like Defendant, Candeub fails to engage—at all—with the leading cases recognizing the rights of disseminators of speech to exercise editorial control over the selection, presentation, and distribution of speech”

If Candeub’s report does get stricken, that would strip at least a dozen citations from Texas’ brief.

Amicus Briefs. All of the submitters are repeat players from the Florida litigation.

Plaintiffs’ reply brief

Defendant’s argument has no limit and would give government all sorts of power to control speech. Consider the wide swath of entities vital to disseminating others’ speech—bookstores, book publishers, essay-compilation editors, theaters, newspaper letters to the editor and op-eds, live television guest interviews, cable television operators offering cable channels, art shows, community bulletin boards, and comedy clubs, just to name a few. According to Defendant, the government could compel them to disseminate (or block them from disseminating) certain speech authored by others. Case after case rejects this unlawful assertion of government power

This is why I see the Texas and Florida litigation as a generational battle over the Internet’s soul–and the future of free speech. The stakes are that high.

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