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Case 3:21-cv-01644-MMC Document 21-1 Filed 03/24/21 Page 1 of 22
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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
`
`
`
`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
`
`
`
`
`Defendant.
`
`
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`
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ...................................................................................... iii
`INTEREST OF THE AMICI CURIAE ........................................................................ 1
`SUMMARY OF ARGUMENT .................................................................................... 3
`DISCUSSION ............................................................................................................... 6
`I.
`The Tornillo rule is a crucial protection for the free flow of information. ......... 6
`II.
`The DTPA poses a significant risk of censorship if used to investigate or
`enforce the government’s conception of viewpoint neutrality online. .............. 11
`CONCLUSION ........................................................................................................... 16
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`
`
`TABLE OF AUTHORITIES
`
`Cases
`Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987) ...................................... 15
`Autohaus, Inc. v. Aguilar, 794 S.W.2d 459 (Tex. App. 1990) .................................... 14
`Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ................................................... 15
`Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988) .......................................... 4
`Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94 (1973) .............. 5
`Connick v. Myers, 461 U.S. 138 (1983) ........................................................................ 4
`e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646, 2017 WL 2210029
`(M.D. Fla. Feb. 8, 2017) ............................................................................................ 9
`Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995) . 9, 10
`Jian Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433 (S.D.N.Y. 2014) .............. 5, 8, 9, 10
`La’Tiejira v. Facebook, Inc., 272 F. Supp. 3d 981 (S.D. Tex. 2017) ........................... 9
`Langdon v. Google, Inc., 474 F. Supp. 2d 622 (D. Del. 2007) ................................... 10
`Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974) ................................ passim
`Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575 (1983)
`.................................................................................................................................. 15
`Murphy v. Twitter, Inc., 274 Cal. Rptr. 3d 360 (Cal. Ct. App. 2021) ......................... 14
`N.A.A.C.P. v. Button, 371 U.S. 415 (1963) ................................................................. 10
`N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) ........................................................ 10
`N.Y. Times Co. v. United States, 403 U.S. 713 (1971) .................................................. 7
`Packingham v. North Carolina, 137 S. Ct. 1730 (2017) ............................................... 8
`Prager Univ. v. Google LLC, 951 F.3d 991 (9th Cir. 2020) ....................................... 14
`Reed v. Town of Gilbert, 576 U.S. 155 (2015) .............................................................. 9
`Reno v. ACLU, 521 U.S. 844 (1997) ............................................................................. 8
`Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457, 2003 WL 21464568
`(W.D. Okla. May 27, 2003) ....................................................................................... 9
`Snyder v. Phelps, 562 U.S. 443 (2011) ......................................................................... 4
`Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ................................................. 8
`
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`
`
`Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748
`(1976) ....................................................................................................................... 11
`Statutes
`15 U.S.C. § 1125 ......................................................................................................... 14
`15 U.S.C. § 45 ............................................................................................................. 13
`47 U.S.C. § 230 ............................................................................................................. 6
`Other Authorities
`Anthony Lewis, Nixon and a Right of Reply, N.Y. Times, Mar. 24, 1974,
`https://perma.cc/2W2J-AJ65 ...................................................................................... 7
`Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020) .................................. 13
`Leah Nylen et al., Trump Pressures Head of Consumer Agency to Bend on Social
`Media Crackdown, Politico (Aug. 21, 2020), https://perma.cc/7FLH-WDYP ....... 13
`Lucas A. Powe, Jr., The Fourth Estate and the Constitution (1992) ......................... 6, 7
`News Release, AG Paxton Issues Civil Investigative Demands to Five Leading Tech
`Companies Regarding Discriminatory and Biased Policies and Practices (Jan. 13,
`2021), https://perma.cc/YWJ2-3DFQ ...................................................................... 12
`News Release, First Assistant AG Jeff Mateer to FTC: Big Tech Companies Must
`Comply with State Deceptive Trade Practices Law (June 12, 2019),
`https://perma.cc/D83P-QF68 ................................................................................... 12
`Office of the Att’y Gen., Consumer Prot. Div., Civil Investigative Demand (Jan. 13,
`2021), https://perma.cc/
`4FNL-Z47B.............................................................................................................. 13
`Zechariah Chafee, Government and Mass Communications (1947) ............................ 8
`
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`INTEREST OF THE AMICI CURIAE
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`The Reporters Committee for Freedom of the Press (the “Reporters
`
`Committee”) is an unincorporated non-profit association. The Reporters Committee
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`was founded by leading journalists and media lawyers in 1970 when the nation’s
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`news media faced an unprecedented wave of government subpoenas forcing reporters
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`to name confidential sources. Today, its attorneys provide pro bono legal
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`representation, amicus curiae support, and other legal resources to protect First
`
`Amendment freedoms and the newsgathering rights of journalists.
`
`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.
`
`
`
`The Electronic Frontier Foundation (“EFF”) is a non-profit, member-supported
`
`civil liberties organization working to protect digital rights. Founded in 1990 and
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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
`
`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
`
`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
`
`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
`
`Amendment.
`
`PEN American Center, Inc. (PEN America or PEN) is a nonprofit organization
`
`that represents and advocates for the freedom to write and freedom of expression,
`
`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
`
`includes more than 7,500 journalists, novelists, poets, essayists, and other
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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.
`
`
`
`Amici collectively represent the First Amendment interests of media outlets
`
`and communications platforms across all technologies. Amici file this brief because
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`they are concerned about the implications of Defendant Paxton’s actions not just for a
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`single social media site but for the fundamental First Amendment principles that
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`animate public debate across all media.
`
`SUMMARY OF ARGUMENT
`
`Any government effort to enforce what it deems viewpoint neutrality on a
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`communications platform carries the temptation to compel platforms to carry speech
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`perceived as favorable to the government, or, at the very least, that speech platforms
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`would not otherwise carry. As such, these efforts pose a profound threat to First
`
`Amendment guarantees, including a free and unfettered press. Amici the Reporters
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`Committee and MLRC take no position on Twitter’s content moderation policies or
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`practices; other Amici have expressed an array of views on the public policy
`
`implications of Twitter’s decision to block President Donald Trump’s access to the
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`platform. Amici are, however, united in their position that the choice to curate
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`content in this way is fully protected by the First Amendment. Here, Texas Attorney
`
`General Ken Paxton explicitly cited Twitter’s and other platforms’ decisions to label
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`or block political content as the basis for initiating an investigation under Texas’s
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`Deceptive Trade Practices-Consumer Protection Act (“DTPA”), and the Office of the
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`Attorney General in Texas has previously expressed support for using deceptive
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`practices laws to police perceived viewpoint discrimination by online platforms.
`
`Accordingly, Amici write to address the following two points in support of
`
`Plaintiff.
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`First, government efforts to use deceptive practices laws, or other similar
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`regulatory schemes, to investigate perceived “bias” in content moderation would
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`contravene the rule articulated by the Supreme Court in Miami Herald Publishing Co.
`
`v. Tornillo—that “governmental regulation” of “editorial control and judgment”
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`cannot be “exercised consistent with First Amendment guarantees of a free press.”
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`418 U.S. 241, 258 (1974); see also Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 510
`
`(9th Cir. 1988) (“The danger inherent in government editorial oversight, even in the
`
`interest of ‘balance,’ is well established.”).1 Under Tornillo, it would be improper for
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`the government, regardless of motive, to mandate that a private editor “publish that
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`which reason tells [it] should not be published.” 418 U.S. at 256 (internal quotation
`
`marks omitted). In its investigation, however, the Office of the Attorney General
`
`claims the authority to intervene in political content curation online, in the name of
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`holding platforms to assertions of impartiality or neutrality in that curation. If
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`Plaintiff’s Complaint and Motion are based on a claim of First Amendment retaliation.
`1
`Amici write to emphasize that Twitter’s content moderation decisions are protected by the First
`Amendment and to highlight their concern that even non-retaliatory government inquiries into a
`private entity’s curation of lawful content—particularly with respect to political speech—raise
`profound First Amendment concerns. Cf. Snyder v. Phelps, 562 U.S. 443, 452 (2011) (“[S]peech on
`public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled
`to special protection.” (quoting Connick v. Myers, 461 U.S. 138, 145 (1983))).
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`allowed to proceed, this inquiry could therefore have the effect of undermining the
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`protections for public discourse established in Tornillo. Cf. Columbia Broad. Sys.,
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`Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 144–45 (1973) (Stewart, J.,
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`concurring) (noting concern that requiring broadcast licensees to carry paid editorial
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`advertising could erode editorial autonomy of print media). Further, and cognizant of
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`the importance of the Tornillo rule to the free flow of information to the public,
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`courts have extended that rule to online communications platforms such as search
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`engines and social media. See, e.g., Jian Zhang v. Baidu.com Inc., 10 F. Supp. 3d
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`433, 443 (S.D.N.Y. 2014) (“In short, Plaintiffs’ efforts to hold [search engine] Baidu
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`accountable in a court of law for its editorial judgments about what political ideas to
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`promote cannot be squared with the First Amendment.”).
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`Second, the constitutional right at issue here—the discretion of a private entity
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`to disseminate or not disseminate lawful content without government intervention—is
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`particularly vulnerable to regulatory interference, even in service of what would
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`otherwise be an appropriate exercise of governmental regulatory authority. Further,
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`deceptive practices laws pose special concerns when they trench on decisions by
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`private actors to control political content on their platforms, especially when the
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`government claims the authority to impose a standard of viewpoint neutrality—as it
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`sees it—under the guise of consumer protection. Were the government able to deploy
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`consumer protection laws in this way, it would invariably seek to favor viewpoints
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`perceived as supportive and disfavor viewpoints perceived as critical.
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`For these reasons, Amici urge the Court to grant Plaintiff’s Motion.
`
`
`
`DISCUSSION
`
`I.
`
`The Tornillo rule is a crucial protection for the free flow of information.
`
`Private curation of lawful content online—especially content related to public
`
`affairs and government officials—is an inextricable component of modern public
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`discourse.2 Such private curation necessarily entails making decisions about what
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`material is allowed or disallowed on a platform. In 1974, the Supreme Court
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`unanimously affirmed that the First Amendment forbids governmental interference in
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`editorial decisions by the press when it held unconstitutional Florida’s “right of
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`reply” statute, which “grant[ed] a political candidate a right to equal space to reply to
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`criticism and attacks on his record by a newspaper.” Tornillo, 418 U.S. at 243, 258.
`
`The Court in Tornillo made clear that government regulation of the “choice of
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`material” to include in a newspaper cannot be “exercised consistent with First
`
`Amendment guarantees.” Id. at 258. This conclusion applies when such decisions
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`deal with the “treatment of public issues and public officials—whether fair or unfair.”
`
`Id. Indeed, press autonomy in decisions “about what and what not to publish” has
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`been described as “absolute.” See Lucas A. Powe, Jr., The Fourth Estate and the
`
`Constitution 277 (1992) (“Because editorial autonomy is indivisible, it must be
`
`
`Amici submit that the express object of the Attorney General’s Office’s investigation—the
`2
`labeling and blocking of third-party political speech—receives direct protection under the First
`Amendment. Amici therefore do not address the application of 47 U.S.C. § 230 in this brief.
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`absolute.”); see also Tornillo, 418 U.S. at 259 (White, J., concurring) (“According to
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`our accepted jurisprudence, the First Amendment erects a virtually insurmountable
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`barrier between government and the print media so far as government tampering, in
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`advance of publication, with news and editorial content is concerned.” (citing N.Y.
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`Times Co. v. United States, 403 U.S. 713 (1971))). Notably, the unanimous Tornillo
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`decision came at the height of fallout from Watergate and shortly after a request by
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`President Richard Nixon that the Justice Department explore the need for a federal
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`right of reply statute. Anthony Lewis, Nixon and a Right of Reply, N.Y. Times, Mar.
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`24, 1974, at E2, https://perma.cc/2W2J-AJ65 (“Overhanging the debate is the reality
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`of Watergate, where a vigorous press broke through repeated official White House
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`denials of wrongdoing.”).
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`Chief Justice Burger’s opinion for the Court in Tornillo rested on two
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`inevitable consequences of permitting the government to mandate access to print
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`media, which would “bring[] about a confrontation with the express provisions of the
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`First Amendment and the judicial gloss on that Amendment developed over the
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`years.” Tornillo, 418 U.S. at 254. First, the specter of a “government [fairness]
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`umpire,” Powe, supra at 283, would chill public discourse by prompting the news
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`media to “conclude that the safe course is to avoid controversy,” Tornillo, 418 U.S. at
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`257. Second, an enforceable right of access poses the threat of direct press
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`censorship:
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`“[L]iberty of the press is in peril as soon as the government tries to
`compel what is to go into a newspaper. A journal does not merely print
`observed facts the way a cow is photographed through a plateglass
`window. As soon as the facts are set in their context, you have
`interpretation and you have selection, and editorial selection opens the
`way to editorial suppression. Then how can the state force abstention
`from discrimination in the news without dictating selection?”
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`Id. at 258 n.24 (quoting Zechariah Chafee, Government and Mass Communications
`
`633 (1947)).
`
`While the Tornillo Court confronted these issues in the context of print media,
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`the Supreme Court has since extended full First Amendment protection to the internet
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`as a communications medium. Reno v. ACLU, 521 U.S. 844, 870 (1997); see also
`
`Packingham v. North Carolina, 137 S. Ct. 1730, 1735–36 (2017) (holding
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`unconstitutional a governmental ban on access to social media, and finding that
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`“social media users employ these websites to engage in a wide array of protected
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`First Amendment activity”). The Court has also recognized the application of
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`Tornillo “well beyond the newspaper context.” Jian Zhang, 10 F. Supp. 3d at 437.
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`For example, the Court extended First Amendment protection to cable programmer
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`and operator decisions about “which stations or programs to include in its repertoire”
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`in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 636 (1994) (citation
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`omitted).3 And, as the Court has since explained, “a private speaker does not forfeit
`
`
`
`While the Court in Turner applied intermediate, rather than strict, scrutiny to the specific
`3
`regulations at issue there, central to the Court’s reasoning was the fact the regulations did not
`discriminate based on content. See Turner, 512 U.S. at 644. By contrast, efforts to impose what the
`government perceives as viewpoint neutrality on a private communications platform are,
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`Case 3:21-cv-01644-MMC Document 21-1 Filed 03/24/21 Page 13 of 22
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`constitutional protection simply by combining multifarious voices, or by failing to
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`edit their themes to isolate an exact message as the exclusive subject matter of the
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`speech.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557,
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`569–70 (1995).
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`Applying those principles, courts have held that online platform decisions
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`about what lawful content to host on their sites receive First Amendment protection.
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`See Jian Zhang, 10 F. Supp. 3d at 438 (applying protection to search engine
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`judgments about “what information (or kinds of information) to include in the results
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`and how and where to display that information”); e-ventures Worldwide, LLC v.
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`Google, Inc., No. 2:14-cv-646, 2017 WL 2210029, at *4 (M.D. Fla. Feb. 8, 2017)
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`(same, “no matter the motive”); Search King, Inc. v. Google Tech., Inc., No. CIV-02-
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`1457, 2003 WL 21464568, at *2–4 (W.D. Okla. May 27, 2003) (search rankings are
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`protected opinion). Further, these protections apply equally to decisions to remove or
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`exclude content. See, e.g., La’Tiejira v. Facebook, Inc., 272 F. Supp. 3d 981, 991
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`(S.D. Tex. 2017) (finding Facebook could decide whether to take down or leave up a
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`post because of “Facebook’s First Amendment right to decide what to publish and
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`what not to publish on its platform”); Langdon v. Google, Inc., 474 F. Supp. 2d 622,
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`
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`necessarily, viewpoint discrimination by the government. See Jian Zhang, 10 F. Supp. 3d at 440
`(distinguishing Turner because plaintiffs sought to punish platform for “conscious decision to . . .
`favor certain expression on core political subjects over other expression on those same political
`subjects”). Since Turner, the Supreme Court has also made clear that viewpoint-neutral but
`content-based regulations are subject to strict scrutiny. See Reed v. Town of Gilbert, 576 U.S. 155,
`168–69 (2015).
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`Case 3:21-cv-01644-MMC Document 21-1 Filed 03/24/21 Page 14 of 22
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`629–30 (D. Del. 2007) (finding First Amendment right extends to decisions to
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`exclude content from search platform). Crucially, these protections apply irrespective
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`of the government’s intention in seeking to intervene in these decisions. See Jian
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`Zhang, 10 F. Supp. 3d at 438 (“Put simply, ‘[d]isapproval of a private speaker’s
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`statement’—no matter how justified disapproval may be—‘does not legitimize use of
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`the [government’s] power to compel the speaker to alter the message by including
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`one more acceptable to others.’” (quoting Hurley, 515 U.S. at 581)).
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`The animating concern in Tornillo—that the power to compel or silence speech
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`on a communications medium would allow the government to improperly skew
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`public discussion of its policies through chill or direct suppression—applies when the
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`government seeks to dictate how private entities moderate lawful content online.
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`Government intrusion into such decisions “dampens the vigor and limits the variety
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`of public debate.” Tornillo, 418 U.S. at 257 (quoting N.Y. Times Co. v. Sullivan, 376
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`U.S. 254, 279 (1964)). As much of that public debate has moved to the internet, the
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`application of federal and state regulatory regimes like tax, and, as here, consumer
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`protection laws must be appropriately calibrated to preserve the “breathing space” it
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`needs to survive. Sullivan, 376 U.S. at 272 (quoting N.A.A.C.P. v. Button, 371 U.S.
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`415, 433 (1963)). Indeed, a key rationale behind the preservation of “breathing
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`space” for public discourse is to ensure that private platforms that carry third-party
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`speech are not discouraged from doing so. Cf. id. at 266 (recognizing that the threat
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`of civil liability for the choice to print lawful content in editorial print advertisements
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`Case 3:21-cv-01644-MMC Document 21-1 Filed 03/24/21 Page 15 of 22
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`could “shut off an important outlet for the promulgation of information and ideas by
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`persons who do not themselves have access to publishing facilities—who wish to
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`exercise their freedom of speech even though they are not members of the press”).
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`In short, if a major purpose of the First Amendment is to allow public
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`discourse to “serve as a powerful antidote to any abuses of power” and as a way for
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`“keeping officials elected by the people responsible to all the people whom they were
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`selected to serve,” Tornillo, 418 U.S. at 260 (White, J., concurring) (citation omitted),
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`the First Amendment must protect how private actors—especially, but not
`
`exclusively, the press—choose to relay the speech of the public regarding those
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`elected officials, as well as the speech of the elected officials themselves.
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`II. The DTPA poses a significant risk of censorship if used to investigate or
`enforce the government’s conception of viewpoint neutrality online.
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`Although Amici do not dispute that the regulation of deceptive commercial
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`
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`practices serves a legitimate and important government purpose, amici do however
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`contest the specific use of consumer protection laws to hold speakers to claims of
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`politically impartial curation. The Supreme Court has emphasized that the
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`permissible regulation of false or misleading commercial speech flows from certain
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`attributes of that speech, including, for instance, that “truth of commercial speech . . .
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`may be more easily verifiable,” and that such speech displays “greater objectivity and
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`hardiness.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425
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`U.S. 748, 771 n.24 (1976); cf. id. at 777 (Stewart, J., concurring) (“[The press] must
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`Case 3:21-cv-01644-MMC Document 21-1 Filed 03/24/21 Page 16 of 22
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`often attempt to assemble the true facts from sketchy and sometimes conflicting
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`sources under the pressure of publication deadlines, [while] the commercial
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`advertiser generally knows the product or service he seeks to sell and is in a position
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`to verify the accuracy of his factual representations . . . .”).
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`Here, the Office of the Attorney General of Texas has explicitly stated that the
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`focus of its investigation is whether online platforms have exercised bias in curating
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`lawful speech. It launched the investigation a week after several technology
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`companies, including Twitter, blocked President Trump’s access to their platforms,
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`and specifically pointed to those actions in its news release announcing the issuance
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`of the civil investigative demand Twitter challenges. See News Release, AG Paxton
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`Issues Civil Investigative Demands to Five Leading Tech Companies Regarding
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`Discriminatory and Biased Policies and Practices (Jan. 13, 2021), https://perma.cc/
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`YWJ2-3DFQ (“[J]ust last week, this discriminatory action [by “Big Tech
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`companies”] included the unprecedented step of removing and blocking President
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`Donald Trump from online media platforms.”). Further, Texas First Assistant
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`Attorney General Jeff Mateer has, in the recent past, expressly claimed the authority
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`to regulate under the DTPA what he terms “bias”—by which he meant political
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`bias—in “big tech.” See News Release, First Assistant AG Jeff Mateer to FTC: Big
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`Tech Companies Must Comply with State Deceptive Trade Practices Law (June 12,
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`2019), https://perma.cc/D83P-QF68 (“If big tech companies are not living up to their
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`commitments and representations regarding being open to all political viewpoints and
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`Case 3:21-cv-01644-MMC Document 21-1 Filed 03/24/21 Page 17 of 22
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`free of bias and restrictions on the basis of policy preference, then they should be held
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`accountable for their false, misleading and deceptive trade practices.”). And the
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`Twitter civil investigative demand itself states that it is “relevant to the subject matter
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`of an investigation of possible violations of . . . the DTPA in Twitter’s representations
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`and practices regarding what can be posted on its platform.” Office of the Att’y Gen.,
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`Consumer Prot. Div., Civil Investigative Demand (Jan. 13, 2021), https://perma.cc/
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`4FNL-Z47B.
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`But “bias” in content curation will necessarily be in the eye of the beholder,
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`and claims of “impartiality” in online moderation practices are not subject to
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`objective verification by government enforcers or courts in the same way as truly
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`false or misleading commercial speech about a used car or a health tonic. Then-Chair
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`of the Federal Trade Commission, Joe Simons, e

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