NetChoice, LLC v. Paxton

CONDUCT OR SPEECH PROTECTED UNDER THE FIRST AMENDMENT

NetChoice argues that private parties have the right to editorial discretion protected by the First Amendment, preventing government coercion to disseminate certain speech. Brief for Petitioners, NetChoice, LLC et al. at 18. According to NetChoice, when private parties choose not to publish certain speech, they exercise a constitutional right to editorial discretion, not “censorship,” which is an “exclusive province of the government.” Id. NetChoice claims that the First Amendment protects private actors’ various forms of speech, which encompasses the freedom to choose how and whether to disseminate speech. Id. at 18–19. Thus, NetChoice contends that editorial discretion by private entities constitutes speech activity, including choices about what to include and exclude. Id. at 19. Furthermore, NetChoice claims that combining diverse voices into a single communication does not waive constitutional protection because courts have consistently recognized that editorial decisions of compiling third-party speech are expressive acts, regardless of whether they aim to isolate a specific message. Id. at 20. NetChoice further explains that presenting edited compilations has been historically realized, evident in various mediums like newspaper op-ed sections and book publishing. Id.

Texas argues that NetChoice’s “editorial discretion” argument is flawed because “editorial discretion” rights are not independently recognized under the First Amendment. Brief for Respondent, Ken Paxton at 28. Texas explains that, instead, courts evaluate editorial discretion using a broader assessment of whether a law affects a platform’s expression, considering factors such as whether the law compels the platform to prioritize another message over its preferred content. Id. Texas adds that Section 7 exclusively applies to voluntary user-to-user communication, granting platforms unrestricted freedom to express, disavow, or distance themselves from hosted content. Id. at 27. Furthermore, Texas contends that NetChoice does not exercise “editorial discretion” because NetChoice disclaiming objectionable content lacks the typical editorial functions of adopting others’ speech by taking reputational and legal responsibility. Id. at 30–31. Texas also argues that NetChoice’s “editorial discretion” does not justify discrimination based on factors unrelated to their websites, like status or association. Id. at 17. Finally, Texas emphasized that requiring NetChoice to equally serve users is a regulation of conduct, not speech because hosting users is not “inherently expressive.” Id. at 19–20.

INTERNET PLATFORMS AND COMMON CARRIERS

NetChoice argues that the First Amendment fully applies to the internet, including platforms like Facebook and YouTube, which are not obligated to display all user-submitted speech, unlike common carriers. Brief for Petitioners at 30–31. Websites covered under HB 20 engage in editorial filtering, distinguishing them from common carriers that do not make individualized decisions on speech dissemination. Id. Furthermore, NetChoice notes that Congress explicitly stated that the platforms are not intended to be classified as common carriers in 47 USC § 230(c). Id. at 32. Instead, Congress aimed to affirm these websites’ authority to selectively manage and remove content without facing legal consequences. Id. Finally, NetChoice contends that historically, governments cannot compel private entities to function as "public squares," except when imposing restrictions on government-owned property. Id. at 33. For instance, newspapers cannot be forced to serve as public forums. Id.

Conversely, Texas claims that historically, states can obligate private enterprises to transmit messages impartially under appropriate circumstances. Brief for Respondent at 22. For example, courts have held that private telephone companies may not act as arbiters of public or private morals or judge the intentions of message senders. Id. Texas contends that a defining characteristic of common carriers is that they do not make personalized decisions regarding which conditions to engage in transactions. Id. Accordingly, Texas argues that social media platforms are common carriers because they treat all users “equally in terms of applying their terms and conditions” and “anyone 13 or older can create an account and post content.” Id. at 23. Texas also mentions that NetChoice meets the four factors courts use to determine the application of common-carriage treatment: whether the entity is in the communications industry, possesses market power, enjoys government support, or is associated with public interest. Id. at 23. According to Texas, platforms function as communications providers akin to cell phones, or the internet, exhibit significant market power, potentially even holding a monopoly, and benefit from Section 230 of the Communications Decency Act, which shields them from substantial liability that may arise from others’ speech, all while serving the public interest of facilitating communication between individuals and elected leaders. Id. at 23–24.

APPLICATION OF STRICT SCRUTINY ANALYSIS

NetChoice argues that HB 20 Section 7 triggers strict scrutiny. Brief for Petitioners at 35. Content-based laws that aim to regulate speech based on communicative content are presumed unconstitutional and must be “narrowly tailored to serve compelling state interests” for justification. Id. at 35-36. NetChoice contends that Section 7 is content-based because it compels the websites to modify their content by requiring them to include unwanted speech or present speech differently, changing the websites’ message on values and community standards. Id. at 36. NetChoice provides that speaker-based laws also trigger strict scrutiny, as they can suppress and manipulate information flow, distorting the marketplace of ideas. Id. at 38. NetChoice argues that HB 20’s exemption for “news, sports, entertainment” and its requirement of 50 million monthly US users effectively target specific websites for unfavorable treatment. Id. at 37. NetChoice warns that such speaker-based laws risk favoring speakers aligned with the government’s views, as acknowledged by the Governor and legislators who indicated that the law would promote conservative viewpoints. Id. at 38.

NetChoice contends that Texas has no compelling governmental interest in forcing private entities to either speak or remain silent to amplify other messages. Id. at 42. NetChoice further argues that, even if Texas has a compelling interest, HB 20 still fails strict scrutiny because it is uncertain if Section 7 effectively promotes Texas’s aim of disseminating diverse views. Id. at 43. NetChoice claims that Section 7 incentivizes websites to eliminate entire content categories, leading to less speech overall. Id. NetChoice provides anexample that if displaying speech criticizing terrorists requires displaying speech praising them, websites could instead remove all speech about terrorism. Id. Additionally, NetChoice claims, Section 7 is underinclusive because Texas fails to justify the arbitrary size requirements that exempt some social media sites, casting doubt on whether the government is genuinely pursuing its stated interest or simply showing bias against certain speakers. Id. at 44.

NetChoice also argues that Section 2 triggers strict scrutiny because it relies on a content and speaker-based definition of “social media platforms” while compelling the covered websites to alter their speech content, forcing them to speak, and impeding their editorial discretion. Id. at 46. However, according to NetChoice, Section 2 fails strict scrutiny because compliance would be burdensome and less restrictive means to achieve the same governmental interest is available. Id. at 49. NetChoice adds that giving consumers information is not a compelling governmental interest because that rationale applies to any disclosure requirements, without distinguishing Section 2. Id. at 50–51. Thus, NetChoice argues that Section 2 is intended to chill editorial discretion by websites disfavored by the state and force them to disseminate speech against their will. Id. at 52.

Conversely, Texas contends that Section 7 should not be subject to the First Amendment analysis because it regulates conduct; but even if it were, it would survive strict scrutiny. Brief for Respondent at 38. Texas points out that the key inquiry in assessing content neutrality is whether the government regulates speech based on agreement or disagreement with the conveyed message. Id. Consequently, Texas argues that HB20 is content-neutral because it mandates the platforms not to discriminate against any viewpoint, instead of regulating speech according to the specific message conveyed. Id.

Texas argues that Section 7 is not a content-based restriction because it does not interfere with the content of NetChoice’s services as much of the content is already illegal or ineligible for First Amendment protection. Id. at 39. Furthermore, Texas mentions that the fact that a law applies to only certain mediums does not automatically trigger strict scrutiny if the differential treatment is “justified by a special characteristic of the covered platforms.” Id. at 40. Texas elaborates that HB 20 justifiably distinguishes the platforms that primarily feature user-generated content from entities that present preselected content. Id.

Texas contends that although Section 2 requires NetChoice to provide more information than what they might prefer, Section 2 would not violate the First Amendment if the disclosure only involves “purely factual and uncontroversial information.” Id. at 42. Texas possesses a compelling interest in guaranteeing that NetChoice adheres to its policies. Id. at 45. Texas explains that the provision of notice to users regarding removed content and a basic explanation for its removal are necessary to safeguard consumers in a commercial relationship. Id. Texas mentions that when evaluating compelled disclosures deemed “unduly burdensome,” the focus is solely on the burdens imposed on speech rather than the financial costs of compliance. Id. at 47. Texas rebuts NetChoice by claiming that the alleged burdens are primarily administrative and operational, largely stemming from their size. Id. at 48. Therefore, Texas concludes that NetChoice cannot claim exemption from basic regulatory requirements. Id.