Fifth Circuit.
NETCHOICE, LLC,
v.
Ken PAXTON
September 16, 2022
Before Jones, Southwick, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:*
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Judge Jones joins all but Part III.E and Part V.B.3 of this opinion. |
*1 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.
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, ––– U.S. ––––, 137 S. Ct. 1730, 1737, 198 L.Ed.2d 273 (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.
This case involves HB 20, a Texas statute that regulates large social media platforms.1 The law regulates platforms2 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.”
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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. |
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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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*2 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 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.
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).
*3 Only the Texas Attorney General may enforce Section 2. Id. § 120.151. The Attorney General may seek injunctive relief but not damages. Ibid.
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*4 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. § 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.
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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, 45 S.Ct. 625, 69 L.Ed. 1138 (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. 861, 874–75 (2022). …
*9 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.
Rather than mount any challenge under the original public meaning of the First Amendment, the Platforms instead focus their attention on 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.
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, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). So the State may not force a private speaker to speak someone’s else message. See Wooley, 430 U.S. at 714, 97 S.Ct. 1428.
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 see47 U.S.C. § 202(a) (prohibiting telecommunications common carriers from “mak[ing] any unjust or unreasonable discrimination in charges, practices, classifications, 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, 100 S.Ct. 2035, 64 L.Ed.2d 741 (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.
*10 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, 94 S.Ct. 2831. The Court held that this “right-of-reply” law violated the First Amendment. Id. at 258, 94 S.Ct. 2831.
The Court explained that the law interfered with the newspaper’s speech by imposing a content-based penalty on it. See id. at 256, 94 S.Ct. 2831 (“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, 94 S.Ct. 2831.
The Court also concluded that the right-of-reply law impermissibly compelled the newspaper to speak messages it opposed. As the Court explained:
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, 94 S.Ct. 2831. 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, 94 S.Ct. 2831 (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, 100 S.Ct. 2035 (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, 100 S.Ct. 2035.
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, 100 S.Ct. 2035. 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, 100 S.Ct. 2035. The Court also emphasized California’s neutrality among 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.
*11 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, 100 S.Ct. 2035. 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, 106 S.Ct. 903 (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, 106 S.Ct. 903. 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, 106 S.Ct. 903. 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 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, 106 S.Ct. 903 (quoting Miami Herald, 418 U.S. at 257, 94 S.Ct. 2831).
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, 106 S.Ct. 903. 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, 106 S.Ct. 903.
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, 106 S.Ct. 903. Second, the right of access at issue in PruneYard was not content-based. Ibid.7
*12 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, 115 S.Ct. 2338. The parade was organized by a private group, the South Boston Allied War Veterans Council (“Council”). Id. at 560, 115 S.Ct. 2338. The Council refused to admit GLIB, citing “traditional religious and social values.” Id. at 562, 115 S.Ct. 2338 (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, 115 S.Ct. 2338. The Council argued that this application of Massachusetts’s public accommodation law violated the First Amendment, and the Supreme Court agreed. Id. at 566, 115 S.Ct. 2338.
The Court concluded that the parade was a “form of expression” that receives First Amendment protection. Id. at 568, 115 S.Ct. 2338. 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, 115 S.Ct. 2338. 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, 115 S.Ct. 2338.
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, 115 S.Ct. 2338. 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, 115 S.Ct. 2338; see also id. at 573, 115 S.Ct. 2338 (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, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). Certain law schools sought to restrict military recruiting on their campuses because of the military’s policies on sexual orientation. Id. at 51, 126 S.Ct. 1297. 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, 126 S.Ct. 1297 (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, 126 S.Ct. 1297.
The Court first held that the Solomon Amendment did not impermissibly force the law schools to speak. Id. at 61–62, 126 S.Ct. 1297. 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, 126 S.Ct. 1297. But the Court determined that this speech was “plainly incidental to the Solomon Amendment’s regulation of conduct” and was nothing like a “Government-mandated pledge or motto” as in Barnette and Wooley. Id. at 62, 126 S.Ct. 1297. Congress could therefore compel this “incidental” speech without violating the First Amendment. Ibid.
*13 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, 126 S.Ct. 1297. 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, 126 S.Ct. 1297. 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, 126 S.Ct. 1297 (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, 126 S.Ct. 1297. 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, 126 S.Ct. 1297. 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, 126 S.Ct. 1297.
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.
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, 94 S.Ct. 2831. 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, 94 S.Ct. 2831. 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., ––– U.S. ––––, 141 S. Ct. 1220, 1224, 209 L.Ed.2d 519 (2021) (Thomas, J., concurring) (noting Platforms are also “unlike newspapers” in that they “hold themselves out as organizations that focus on distributing the speech of the broader public”).
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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. |
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
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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. |
*14 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. See547 U.S. at 65, 126 S.Ct. 1297 (citing Bd. of Educ. of Westside Cmty. Schs. (Dist. 66) v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (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, 115 S.Ct. 2338. Nor do they suggest that they are “intimately connected with the communication” Section 7 requires them to host. Id. at 576, 115 S.Ct. 2338. 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 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, 115 S.Ct. 2338. 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, 126 S.Ct. 1297. 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 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.
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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, 109 S.Ct. 2533, 105 L.Ed.2d 342 (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 –––– 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 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, 109 S.Ct. 2533.
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*15 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, 106 S.Ct. 903 (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, 94 S.Ct. 2831 (“[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, 126 S.Ct. 1297 (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, 547 U.S. at 63, 126 S.Ct. 1297. 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, 100 S.Ct. 2035. 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, 126 S.Ct. 1297. 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, 126 S.Ct. 1297. 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, 115 S.Ct. 2338. 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.
*16 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, 94 S.Ct. 2831. 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, 106 S.Ct. 903; see also id. at 14, 106 S.Ct. 903 (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, 106 S.Ct. 903 (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.
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 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, 114 S.Ct. 2445, 129 L.Ed.2d 497 (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, 114 S.Ct. 2445 (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, 114 S.Ct. 2445. 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, 94 S.Ct. 2831 (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
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The Platforms’ other cases ostensibly supporting premise one are even farther afield. Manhattan Community Access Corp. v. Halleck, ––– U.S. ––––, 139 S. Ct. 1921, 204 L.Ed.2d 405 (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, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998), simply reiterated Turner I’s conclusion that cable operators’ selection and presentation of programming is speech for First Amendment purposes. Id. at 674, 118 S.Ct. 1633. |
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 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
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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 –––– – ––––, ––––. And it concludes that Section 7 impermissibly interferes with the Platforms’ publishing process. Id. at ––––. 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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*17 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 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, 57 S.Ct. 650, 81 L.Ed. 953 (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, 93 S.Ct. 2553, 37 L.Ed.2d 669 (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, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998); see also Miami Herald, 418 U.S. at 258, 94 S.Ct. 2831 (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 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
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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 ––––. 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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*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.
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. SeeH.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 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?
*19The 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.
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, 91 S.Ct. 1780, 29 L.Ed.2d 284 (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, 84 S.Ct. 710, 11 L.Ed.2d 686 (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, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985); see also, e.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195–96, 117 S.Ct. 1174, 137 L.Ed.2d 369 (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’ 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
*20 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.22See 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 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 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.
*21 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 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.
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 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. See3 BLACKSTONE, supra, at *164 (discussing the duties of innkeepers, bargemasters, and farriers). …
*22 The common carrier’s duty to serve without discrimination was transplanted to America along with the rest of the common law. SeeCHARLES 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 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. …
The telegraph was the first communications industry subjected to common carrier laws in the United States. See Genevieve Lakier, The Non-First 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—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. … 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 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).
*23 Courts applied this same holding-out test to novel communications enterprises. For example, in State ex rel. Webster v. Nebraska Telephone Co., 17 Neb. 126, 22 N.W. 237 (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, 22 N.W. 237. 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., 66 Md. 399, 7 A. 809, 811 (1887); see also, e.g., Walls v. Strickland, 174 N.C. 298, 93 S.E. 857, 858 (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:
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, 105 Ind. 250, 5 N.E. 178, 182 (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. …
…
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.
*25 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.
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, 99 S.Ct. 1435, 59 L.Ed.2d 692 (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 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, 135 Ind. 54, 34 N.E. 818, 818 (1893) (gas); City of Danville v. Danville Water Co., 178 Ill. 299, 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.
*26 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, 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, ––– U.S. ––––, 141 S. Ct. 1220, 209 L.Ed.2d 519 (2021) (mem.); Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1178-79 (9th Cir. 2022).28 These decisions reflect the modern intuition that the Platforms are the forum for political discussion and debate, and exclusion 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.
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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”). |
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). 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 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. …
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.
*30 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.
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, 114 S.Ct. 2445 (quotation omitted).
The “principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of agreement or 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, 114 S.Ct. 2445. 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, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015); accord City of Austin v. Reagan Nat’l Advert. of Austin, LLC, ––– U.S. ––––, 142 S. Ct. 1464, 1471–74, 212 L.Ed.2d 418 (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, 114 S.Ct. 2445. 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).
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, 114 S.Ct. 2445 (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.
*31 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. SeeTEX. 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, 114 S.Ct. 2445 (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, 89 S.Ct. 1827, 23 L.Ed.2d 430 (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, 112 S.Ct. 2538, 120 L.Ed.2d 305 (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 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, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983), and Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (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, 103 S.Ct. 1365. 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, 103 S.Ct. 1365. 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, 103 S.Ct. 1365. 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, 107 S.Ct. 1722; see also Grosjean v. Am. Press Co., 297 U.S. 233, 251, 56 S.Ct. 444, 80 L.Ed. 660 (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, 111 S.Ct. 1438, 113 L.Ed.2d 494 (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, 107 S.Ct. 1722. 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.” 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, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). We thus hold that even if Section 7 regulated the Platforms’ speech, intermediate scrutiny would apply.
*32Section 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, 117 S.Ct. 1174. 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 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, 114 S.Ct. 2445; 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, 117 S.Ct. 1174 (“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, 65 S.Ct. 1416, 89 L.Ed. 2013 (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, 94 S.Ct. 2831. 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, 94 S.Ct. 2831. 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, 115 S.Ct. 2338 (quotation omitted). The Platforms do not exercise the same editorial discretion and control that 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, 114 S.Ct. 2445.
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, 117 S.Ct. 1174. 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
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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 ––––. 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, 114 S.Ct. 2445. 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, 114 S.Ct. 2445. The Platforms and the dissent offer no evidence that 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. |
*33Third, 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 –––– – –––– & 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, 117 S.Ct. 1174.35
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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 –––– (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, 114 S.Ct. 2445 (quotation omitted). They do so by penalizing and disincentivizing the same diversity the Supreme Court has recognized as “essential.” The dissent does not 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, 108 S.Ct. 1910, 100 L.Ed.2d 465 (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, 124 S.Ct. 2783, 159 L.Ed.2d 690 (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, 108 S.Ct. 1910. |
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, 100 S.Ct. 2035 (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, 89 S.Ct. 1827.
*34 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 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.
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, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). Under the relevant Supreme Court precedent, the Platforms are therefore not entitled to facial relief against Section 2. …
…
*42 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.
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 “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
*43 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.
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 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.
*44 What follows is my effort to work with the same material the majority analyzed. My desire is to explain why the Platforms’ moderating third-party-content 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.
The critical question is whether the anti-discrimination provisions in Section 7 of HB 20 regulate non-expressive conduct or whether they regulate 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 ––––. 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. 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, 94 S.Ct. 2831, 41 L.Ed.2d 730 (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
*45 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, 94 S.Ct. 2831. The Miami newspaper sought declaratory 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, 94 S.Ct. 2831. 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 –––– (quoting Miami Herald, at 256, 94 S.Ct. 2831). The majority does not, though, understand the Court to have recognized the selection process itself as First Amendment expression. See Maj. Op. at ––––. 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, 94 S.Ct. 2831. 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 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, 94 S.Ct. 2831. 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, 100 S.Ct. 2035, 64 L.Ed.2d 741 (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, 100 S.Ct. 2035. 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, 100 S.Ct. 2035.
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, 100 S.Ct. 2035. 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, 100 S.Ct. 2035.
*46 The Supreme Court qualified PruneYard just six years later in Pacific Gas & Electric Company v. Public Utilities Commission of California, 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 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 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, 106 S.Ct. 903. 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, 106 S.Ct. 903. 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, 106 S.Ct. 903 (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, 106 S.Ct. 903 (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, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (“Turner I”). The Court considered federal regulations requiring cable operators to set aside certain channels for commercial broadcast stations. See id. at 630, 114 S.Ct. 2445; id. at 674, 114 S.Ct. 2445 (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, 114 S.Ct. 2445. 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, 114 S.Ct. 2445 (quoting Los Angeles v. Preferred Comms., Inc., 476 U.S. 488, 494, 106 S.Ct. 2034, 90 L.Ed.2d 480 (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, 114 S.Ct. 2445.
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, 114 S.Ct. 2445. 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, 114 S.Ct. 2445. 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, 114 S.Ct. 2445. These factors, together, suggested a lower tier of scrutiny should be applied. Id. at 661–62, 114 S.Ct. 2445.
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, 114 S.Ct. 2445. The 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, 114 S.Ct. 2445; id. at 669, 114 S.Ct. 2445 (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, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (“Turner II”).
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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 ––––. 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. See512 U.S. at 675, 114 S.Ct. 2445 (O’Connor, J., dissenting). |
*47 The very next term, the Supreme Court decided Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (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, 115 S.Ct. 2338. 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, 115 S.Ct. 2338. 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 ... as does even the simple selection of a paid noncommercial advertisement for inclusion in a daily paper.” Id. at 570, 115 S.Ct. 2338 (citing Turner I, 512 U.S. at 636, 114 S.Ct. 2445; Miami Herald, 418 U.S. at 258, 94 S.Ct. 2831; New York Times v. Sullivan, 376 U.S. 254, 265–66, 84 S.Ct. 710, 11 L.Ed.2d 686 (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, 115 S.Ct. 2338. 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, 126 S.Ct. 1297, 164 L.Ed.2d 156 (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, 126 S.Ct. 1297 (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, 126 S.Ct. 1297. “[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, 126 S.Ct. 1297. 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 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, 126 S.Ct. 1297.
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 –––– (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.
*48 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 [its] property as a forum for the speech of others.’ ” NetChoice, 34 F.4th at 1215 (quoting PruneYard, 447 U.S. at 85, 100 S.Ct. 2035)). 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, 106 S.Ct. 903; Hurley, 515 U.S. at 580, 115 S.Ct. 2338.
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, 126 S.Ct. 1297. 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, 115 S.Ct. 2338). There was no “inherently expressive” nature to a law school’s decision to allow recruiters on campus, though. Id. at 64, 126 S.Ct. 1297. 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 –––– – ––––. 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, 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.
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.
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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, 114 S.Ct. 2445 (quoting United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)).
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, 117 S.Ct. 1174 (quotation marks and citation omitted); see id. at 226, 117 S.Ct. 1174 (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.
*50 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 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, 117 S.Ct. 1174 (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, 114 S.Ct. 2445 (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, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011); see also Buckley v. Valeo, 424 U.S. 1, 48–49, 96 S.Ct. 612, 46 L.Ed.2d 659 (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)).
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 ––––. 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.
…
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 that do discuss this intersection reinforce the idea common carriers retain their First Amendment protections for their own speech. See id. at 636, 114 S.Ct. 2445.
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 ––––. 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 ––––. 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 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.
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 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.