Case 3:21-cv-01644-MMC Document 21 Filed 03/24/21 Page 1 of 6
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`KATIE TOWNSEND (SBN 254321)
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`Counsel of Record
`GABE ROTTMAN*
`MAILYN FIDLER*
`ktownsend@rcfp.org
`REPORTERS COMMITTEE FOR
`FREEDOM OF THE PRESS
`1156 15th Street NW, Suite 1020
`Washington, D.C. 20005
`Telephone: (202) 795-9300
`Facsimile: (202) 795-9310
`* Of counsel
`
`Counsel for Amici Curiae
`Additional counsel listed on signature page
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`TWITTER, INC.
`
`
`Plaintiff,
`
`
`v.
`
`KEN PAXTON,
`in his official capacity as Attorney
`General of Texas,
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`Case No. 3:21-CV-01644
`
`
`MOTION FOR LEAVE TO FILE
`BRIEF OF THE REPORTERS
`COMMITTEE FOR FREEDOM OF
`THE PRESS, CENTER FOR
`DEMOCRACY AND
`TECHNOLOGY, ELECTRONIC
`FRONTIER FOUNDATION, MEDIA
`LAW RESOURCE CENTER, INC.,
`AND PEN AMERICA AS AMICI
`CURIAE IN SUPPORT OF
`PLAINTIFF
`
`
`
`Judge: Maxine Chesney
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`MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF (Case No. 3:21-CV-01644)
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`Defendant.
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`KATIE TOWNSEND (SBN 254321)
`
`Counsel of Record
`GABE ROTTMAN*
`MAILYN FIDLER*
`ktownsend@rcfp.org
`REPORTERS COMMITTEE FOR
`FREEDOM OF THE PRESS
`1156 15th Street NW, Suite 1020
`Washington, D.C. 20005
`Telephone: (202) 795-9300
`Facsimile: (202) 795-9310
`* Of counsel
`
`Counsel for Amici Curiae
`Additional counsel listed on signature page
`
`
`
`
`
`
`
`TWITTER, INC.
`
`
`Plaintiff,
`
`
`v.
`
`KEN PAXTON,
`in his official capacity as Attorney
`General of Texas,
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`Case No. 3:21-CV-01644
`
`
`MOTION FOR LEAVE TO FILE
`BRIEF OF THE REPORTERS
`COMMITTEE FOR FREEDOM OF
`THE PRESS, CENTER FOR
`DEMOCRACY AND
`TECHNOLOGY, ELECTRONIC
`FRONTIER FOUNDATION, MEDIA
`LAW RESOURCE CENTER, INC.,
`AND PEN AMERICA AS AMICI
`CURIAE IN SUPPORT OF
`PLAINTIFF
`
`
`
`Judge: Maxine Chesney
`
`
`1
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`MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF (Case No. 3:21-CV-01644)
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`Defendant.
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`Case 3:21-cv-01644-MMC Document 21 Filed 03/24/21 Page 2 of 6
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`Proposed amici curiae, the Reporters Committee for Freedom of the Press
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`(“Reporters Committee”), Center for Democracy and Technology, Electronic Frontier
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`Foundation, Media Law Resource Center, Inc., and PEN America, respectfully move
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`this Court for leave to submit the attached amici curiae brief in support of Plaintiff’s
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`Motion for Temporary Restraining Order and Order to Show Cause Why a
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`Preliminary Injunction Should Not Issue (“Plaintiff’s Motion”). The proposed brief
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`is attached to this Motion.
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`The Reporters Committee is an unincorporated nonprofit founded by leading
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`journalists and media lawyers in 1970 when the nation’s news media faced an
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`unprecedented wave of government subpoenas forcing reporters to name confidential
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`sources. Today, its attorneys provide pro bono legal representation, amicus curiae
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`support, and other legal resources to protect First Amendment freedoms and the
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`newsgathering rights of journalists.
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`Center for Democracy & Technology (“CDT”) is a non-profit public interest
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`organization. For more than 25 years, CDT has represented the public’s interest in an
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`open, decentralized internet and worked to ensure that the constitutional and
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`democratic values of free expression and privacy are protected in the digital age.
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`CDT regularly advocates in support of the First Amendment and protections for
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`online speech before legislatures, regulatory agencies, and courts.
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`The Electronic Frontier Foundation (“EFF”) is a non-profit, member-supported
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`civil liberties organization working to protect digital rights. Founded in 1990 and
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`MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF (Case No. 3:21-CV-01644)
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`Case 3:21-cv-01644-MMC Document 21 Filed 03/24/21 Page 3 of 6
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`based in San Francisco, California, EFF has more than 37,000 active donors and
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`dues-paying members. EFF represents the interests of technology users in both court
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`cases and broader policy debates surrounding the application of law in the digital age.
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`The Media Law Resource Center, Inc. (“MLRC”) is a non-profit professional
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`association for content providers in all media, and for their defense lawyers,
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`providing a wide range of resources on media and content law, as well as policy
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`issues. These include news and analysis of legal, legislative, and regulatory
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`developments; litigation resources and practice guides; and national and international
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`media law conferences and meetings. The MLRC also works with its membership to
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`respond to legislative and policy proposals, and speaks to the press and public on
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`media law and First Amendment issues. It counts as members over 125 media
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`companies, including newspaper, magazine and book publishers, TV and radio
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`broadcasters, and digital platforms, and over 200 law firms working in the media law
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`field. The MLRC was founded in 1980 by leading American publishers and
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`broadcasters to assist in defending and protecting free press rights under the First
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`Amendment.
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`PEN American Center, Inc. (PEN America or PEN) is a nonprofit organization
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`that represents and advocates for the freedom to write and freedom of expression,
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`both in the United States and abroad. PEN America is affiliated with more than 100
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`centers worldwide that comprise the PEN International network. Its Membership
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`includes more than 7,500 journalists, novelists, poets, essayists, and other
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`MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF (Case No. 3:21-CV-01644)
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`Case 3:21-cv-01644-MMC Document 21 Filed 03/24/21 Page 4 of 6
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`professionals. PEN America stands at the intersection of journalism, literature, and
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`human rights to protect free expression. PEN champions the freedom of people
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`everywhere to write, create literature, convey information and ideas, and express their
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`views, recognizing the power of the word to transform the world. PEN America
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`supports the First Amendment and freedom of expression in the United States.
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`Plaintiff consents to the filing of this brief. Defendant does not oppose this
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`Motion for Leave to file an amicus brief.
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`Federal district courts have inherent authority to consider submissions from
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`amicus curiae in connection with proceedings pending before them. Indeed,
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`“[d]istrict courts frequently welcome amicus briefs from non-parties concerning legal
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`issues that have potential ramifications beyond the parties directly involved or if the
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`amicus has unique information or perspective that can help the court beyond the help
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`that the lawyers for the parties are able to provide.” NGV Gaming, Ltd. v. Upstream
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`Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005) (quotation and
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`citation omitted). This discretion is liberal, requiring only that an applicant
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`demonstrate that its “participation is useful or otherwise desirable to the court.” See
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`Woodfin Suite Hotels, LLC v. City of Emeryville, No. C 06-1254 SBA, 2007 U.S.
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`Dist. LEXIS 4467, at *7 (N.D. Cal. Jan. 9, 2007) (quoting In re Roxford Foods Litig.,
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`790 F.Supp. 987 (E.D. Cal. 1991)).
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`Amici have a strong interest in protecting the free flow of information to the
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`public, of which private speakers, including, but not limited to, news organizations,
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`MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF (Case No. 3:21-CV-01644)
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`Case 3:21-cv-01644-MMC Document 21 Filed 03/24/21 Page 5 of 6
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`are a key part. Amici are concerned with the potential chilling effect this
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`investigation may have on public discourse and how permitting an inquiry into
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`political content curation by online platforms would contravene the rule articulated
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`by the U.S. Supreme Court in Miami Herald Pub. Co. v. Tornillo—that
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`“governmental regulation” of “editorial control and judgment” cannot be “exercised
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`consistent with First Amendment guarantees of a free press[.]” 418 U.S. 241, 258
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`(1974). The proposed amici curiae brief also offers additional information on how
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`the particular constitutional right at issue here—the discretion of a private speaker to
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`disseminate or not disseminate lawful speech without government interference—is
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`vulnerable to regulatory pressure, including through government investigations
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`pursuant to deceptive practices statutes such as the Texas Deceptive Trade Practices-
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`Consumer Protection Act (“DTPA”). While laws such as the DTPA serve laudable
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`goals, using them to enforce viewpoint neutrality by private speakers presents the
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`temptation to compel platforms to carry speech perceived as favorable to the
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`government, or, at the very least, that platforms would not otherwise carry. When
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`deployed in this way, such laws may threaten First Amendment guarantees.
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`For the foregoing reasons, proposed amici curiae respectfully request leave to
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`file the attached brief.
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`MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF (Case No. 3:21-CV-01644)
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`Case 3:21-cv-01644-MMC Document 21 Filed 03/24/21 Page 6 of 6
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`Dated: March 24, 2021
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`Respectfully submitted,
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`/s/ Katie Townsend___________
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`KATIE TOWNSEND (SBN 254321)
`Counsel of Record
`
`GABE ROTTMAN*
`MAILYN FIDLER*
`ktownsend@rcfp.org
`REPORTERS COMMITTEE FOR
`FREEDOM OF THE PRESS
`1156 15th Street NW, Suite 1020
`Washington, D.C. 20005
`Telephone: (202) 795-9300
`Facsimile: (202) 795-9310
`* Of counsel
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`DAVID GREENE (SBN 160107)
`davidg@eff.org
`ELECTRONIC FRONTIER FOUNDATION
`815 Eddy Street
`San Francisco, CA 94019
`Telephone: (415) 436-9333 x.143
`
`SAMIR JAIN*
`CAITLIN VOGUS*
`CENTER FOR DEMOCRACY &
`TECHNOLOGY
`1401 K Street NW, Suite 200
`Washington, D.C. 20005
`*Of counsel
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`NORA BENAVIDEZ*
`PEN AMERICA
`588 Broadway, Suite 303
`New York, NY 10012
`(212) 334-1660
`*Of counsel
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`Counsel for Amici Curiae
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