Case 1:21-cv-00840-RP Document 51 Filed 12/01/21 Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`1:21-CV-840-RP
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`NETCHOICE, LLC d/b/a NETCHOICE,
`a 501(c)(6) District of Columbia organization,
`and COMPUTER & COMMUNICATIONS
`INDUSTRY ASSOCIATION d/b/a CCIA,
`a 501(c)(6) non-stock Virginia Corporation,
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`
`
`v.
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`KEN PAXTON, in his official capacity as Attorney
`General of Texas,
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`
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`Defendant.
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`Plaintiffs,
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`
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`ORDER
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`Before the Court is Plaintiffs NetChoice, LLC d/b/a NetChoice (“NetChoice”), a 501(c)(6)
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`District of Columbia organization, and Computer & Communications Industry Association d/b/a
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`CCIA (“CCIA”), a 501(c)(6) non-stock Virginia corporation’s (“Plaintiffs”) Motion for Preliminary
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`Injunction, (Dkt. 12), Defendant Texas Attorney General Ken Paxton’s (the “State”) response in
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`opposition, (Dkt. 39), and Plaintiffs’ reply, (Dkt. 48). The Court held the preliminary injunction
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`hearing on November 29, 2021. (Dkt. 47). After considering the parties’ briefs and arguments, the
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`record, and the relevant law, the Court denies the motion to dismiss and grants the preliminary
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`injunction.
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`I. BACKGROUND
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`A. The Challenged Legislation: HB 20
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`In the most recent legislative session, the State sought to pass a bill that would “allow
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`Texans to participate on the virtual public square free from Silicon Valley censorship.” Senator
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`Bryan Hughes (@SenBryanHughes), TWITTER (Mar. 5, 2021, 10:48 PM), https://twitter.com/
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`1
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`CLERK, U.S. DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
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`BY: ________________________________
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`FILED
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`DEPUTY
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`December 01, 2021
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`Julie Golden
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`Case 1:21-cv-00840-RP Document 51 Filed 12/01/21 Page 2 of 30
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`SenBryanHughes/status/1368061021609463812. Governor Greg Abbott voiced his support,
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`tweeting “[s]ilencing conservative views is un-American, it’s un-Texan[,] and it’s about to be illegal in
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`Texas.” Greg Abbott (@GregAbbott_TX), TWITTER (Mar. 5, 2021, 8:35 PM),
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`https://t.co/JsPam2XyqD. After a bill failed to pass during the regular session or the first special
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`session, Governor Abbott called a special second legislative session directing the Legislature to
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`consider and act on legislation “protecting social-media and email users from being censored.”
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`(Proclamation by the Governor of the State of Texas (Aug. 5, 2021), https://gov.texas.gov/uploads
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`/files/press/PROC_second_called_session_87th_legislature_IMAGE_08-05-21.pdf. The
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`Legislature passed House Bill 20 (“HB 20”), and Governor Abbott signed it into law on September
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`9, 2021. (Prelim. Inj. Mot., Dkt. 12, at 16).
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`HB 20 prohibits large social media platforms from “censor[ing]” a user based on the user’s
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`“viewpoint.” Tex. Civ. Prac. & Rem. Code § 143A.002 (“Section 7”). Specifically, Section 7 makes it
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`unlawful for a “social media platform” to “censor a user, a user’s expression, or a user’s ability to
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`receive the expression of another person based on: (1) the viewpoint of the user or another person;
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`(2) the viewpoint represented in the user’s expression; or (3) a user’s geographic location in this state
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`or any part of this state.” Id. § 143A.002(a)(1)-(3). The State defines social media platforms as any
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`website or app (1) with more than 50 million active users in the United States in a calendar month,
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`(2) that is open to the public, (3) allows users to create an account, and (4) enables users to
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`communicate with each other “for the primary purpose of posting information, comments,
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`messages, or images.” Tex. Bus. & Com. Code §§ 120.001(1), 120.002(b); Tex. Civ. Prac. & Rem.
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`Code § 143A.003(c). HB 20 applies to sites and apps like Facebook, Instagram, Pinterest, TikTok,
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`Twitter, Vimeo, WhatsApp, and YouTube. (Prelim. Inj. Mot., Dkt. 12, at 11); (see CCIA Decl., Dkt.
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`12-1, at 3–4; NetChoice Decl., Dkt. 12-2, at 3–4). HB 20 excludes certain companies like Internet
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`service providers, email providers, and sites and apps that “consist[] primarily of news, sports,
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`2
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`Case 1:21-cv-00840-RP Document 51 Filed 12/01/21 Page 3 of 30
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`entertainment, or other information or content that is not user generated but is preselected by the
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`provider” and user comments are “incidental to” the content. Tex. Bus. & Com. Code §
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`120.001(1)(A)–(C). HB 20 carves out two content-based exceptions to Section 7’s broad prohibition:
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`(1) platforms may moderate content that “is the subject of a referral or request from an organization
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`with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual
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`abuse from ongoing harassment,” and (2) platforms may moderate content that “directly incites
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`criminal activity or consists of specific threats of violence targeted against a person or group because
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`of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace
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`officer or judge.” Tex. Civ. Prac. & Rem. Code § 143A.006(a)(2)–(3).
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`HB 20 also requires social media platforms to meet disclosure and operational requirements.
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`Tex. Bus. & Com. Code § 120.051, 120.101–.104 (“Section 2”). Section 2 requires platforms to
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`publish “acceptable use policies,” set up an “easily accessible” complaint system, produce a
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`“biannual transparency report,” and “publicly disclose accurate information regarding its content
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`management, data management, and business practices, including specific information regarding
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`how the social media platform: (i) curates and targets content to users; (ii) places and promotes
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`content, services, and products, including its own content, services, and products; (iii) moderates
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`content; (iv) uses search, ranking, or other algorithms or procedures that determine results on the
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`platform; and (v) provides users’ performance data on the use of the platform and its products and
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`services.” Id. § 120.051(a).
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`If a user believes a platform has improperly “censored” their viewpoint under Section 7, the
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`user can sue the platform, which may be enjoined, and obtain attorney’s fees. Tex. Civ. Prac. & Rem.
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`Code § 143A.007(a), (b). Lawsuits can be brought by any Texan and anyone doing business in the
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`state or who “shares or receives expression in this state.” Id. §§ 143A.002(a), 143A.004(a), 143A.007.
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`In addition, the Attorney General of Texas may “bring an action to enjoin a violation or a potential
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`3
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`Case 1:21-cv-00840-RP Document 51 Filed 12/01/21 Page 4 of 30
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`violation” of HB 20 and recover their attorney’s fees. Id. § 143A.008. Failure to comply with Section
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`2’s requirement also subjects social media platforms to suit. The Texas Attorney General may seek
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`injunctive relief and collect attorney’s fees and “reasonable investigative costs” if successful in
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`obtaining injunctive relief. Tex. Bus. & Com. Code § 120.151.
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`Finally, HB 20 contains a severability clause. Tex. Civ. Prac. & Rem. Code § 143A.008(a). “If
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`any application of any provision in this Act to any person, group of persons, or circumstances is
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`found by a court to be invalid or unconstitutional, the remaining applications of that provision to all
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`other persons and circumstances shall be severed and may not be affected.” Id. § 143A.008(b).
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`HB 20 goes into effect on December 2, 2021. Id. § 143A.003–143A.008 (noting that the
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`effective date is December 2, 2021).
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`Plaintiffs recently challenged a similar Florida law in the Northern District of Florida in
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`NetChoice v. Moody, successfully obtaining a preliminary injunction to halt the enforcement of that
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`law. The district court in that case described the Florida legislation as “an effort to rein in social-
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`media providers deemed too large and too liberal.” No. 4:21CV220-RH-MAF, 2021 WL 2690876, at
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`*12 (N.D. Fla. June 30, 2021). The Florida court concluded that
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`Balancing the exchange of ideas among private speakers is not a legitimate
`governmental interest. And even aside from the actual motivation for this legislation,
`it is plainly content-based and subject to strict scrutiny. It is also subject to strict
`scrutiny because it discriminates on its face among otherwise-identical speakers:
`between social-media providers that do or do not meet the legislation’s size
`requirements and are or are not under common ownership with a theme park. The
`legislation does not survive strict scrutiny. Parts also are expressly preempted by
`federal law.
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`Id. The court’s preliminary injunction has been appealed to the Eleventh Circuit.
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`B. Procedural Background
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`Plaintiffs are two trade associations with members that operate social media platforms that
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`would be affected by HB 20. (Compl., Dkt. 1, at 1–2); (Prelim. Inj. Mot., Dkt. 12, at 11). Plaintiffs
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`filed their lawsuit on September 22, 2021, challenging HB 20 because it violates the First
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`Amendment; is void for vagueness; violates the commerce clause, full faith and credit clause, and the
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`Fourteenth Amendment’s due process clause; is preempted under the supremacy clause by the
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`Communications Decency Act, 47 U.S.C. § 230; and violates the equal protection clause of the
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`Fourteenth Amendment. (Compl., Dkt. 1, at 31, 35, 38, 41, 44). In their motion for preliminary
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`injunction, Plaintiffs request that this Court preliminarily enjoin the Texas Attorney General from
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`enforcing Sections 2 and 7 of HB 20 against Plaintiffs and their members. (Dkt. 12, at 54).
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`In response to the motion for preliminary injunction, the State requested expedited
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`discovery, (Mot. Discovery, Dkt. 20), which Plaintiffs opposed, (Dkt. 22). The Court granted the
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`State’s request, in part, permitting “narrowly-tailored, expedited discovery” before the State would
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`be required to respond to the preliminary injunction motion. (Order, Dkt. 25, at 3). The Court
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`expressed its confidence in the State to “significantly tailor its discovery requests . . . to obtain
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`precise information without burdening Plaintiffs’ members.” (Id. at 4). Several days later, Plaintiffs
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`filed a motion for protective order, (Dkt. 29), which the Court granted, (Order, Dkt. 36). In that
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`Order, the Court allowed the State to depose Plaintiffs’ declarants, request documents relied on by
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`those declarants, and serve interrogatories directed to Plaintiffs. (Id. at 2).
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`Additionally, the State filed a motion to dismiss about to two weeks after Plaintiffs filed their
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`motion for preliminary injunction. (Mot. Dismiss, Dkt. 23). The State argues that Plaintiffs lack
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`associational or organizational standing. (Id.). Plaintiffs respond that they have associational standing
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`to represent their members covered by HB 20 and also have organizational standing. (Resp. Mot.
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`Dismiss, Dkt. 28).
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`Finally, Plaintiffs filed a motion to strike the expert report of Adam Candeub, which was
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`attached to the State’s opposition to the preliminary injunction motion. (Mot. Strike, Dkt. 43).
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`Plaintiffs challenge the report by Candeub, who is a law professor at Michigan State University, for
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`being a “second legal brief” that offers “nothing more than (incorrect) legal conclusions.” (Id. at 2).
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`Plaintiffs argue that it is well-established that an expert may not render conclusions of law. (Id.).
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`They also argue that his “methodology” is unreliable because his tests are simply legal standards. (Id.
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`at 4–5). Immediately before this Court issued this opinion, the State filed an opposition brief. (Dkt.
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`50). Because the Court does not rely on Candeub’s report, the Court will dismiss Plaintiffs’ motion
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`to strike without prejudice as moot.
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`II. LEGAL STANDARDS
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`Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject-matter
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`jurisdiction as a defense to suit. Fed. R. Civ. P. 12(b)(1). Federal district courts are courts of limited
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`subject matter jurisdiction and may only exercise such jurisdiction as is expressly conferred by the
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`Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
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`A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the
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`statutory or constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of
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`Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden of proof for a Rule 12(b)(1) motion to
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`dismiss is on the party asserting jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
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`2001), cert. denied, 536 U.S. 960 (2002). “Accordingly, the plaintiff constantly bears the burden of
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`proof that jurisdiction does in fact exist.” Id. In ruling on a Rule 12(b)(1) motion, the court may
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`consider any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts
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`evidenced in the record; or (3) the complaint, undisputed facts, and the court’s resolution of
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`disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
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`A preliminary injunction is an extraordinary remedy, and the decision to grant such relief is
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`to be treated as the exception rather than the rule. Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047,
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`1050 (5th Cir. 1997). “A plaintiff seeking a preliminary injunction must establish that he is likely to
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`succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,
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`that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
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`6
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`Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The party seeking injunctive relief carries the burden
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`of persuasion on all four requirements. PCI Transp. Inc. v. W. R.R. Co., 418 F.3d 535, 545 (5th Cir.
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`2005).
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`III. DISCUSSION
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`A. Plaintiffs Have Standing To Bring This Suit
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`In its motion to dismiss, the State asserts that Plaintiffs lack associational and organizational
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`standing and their complaint should be dismissed. (Dkt. 23). Under Article III of the Constitution,
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`federal court jurisdiction is limited to cases and controversies. U.S. Const. art. III, 2, cl. 1; Raines v.
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`Byrd, 521 U.S. 811, 818 (1997). A key element of the case-or-controversy requirement is that a
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`plaintiff must establish standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To
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`establish Article III standing, a plaintiff must demonstrate that she has “(1) suffered an injury-in-
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`fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
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`redressed by a favorable judicial decision.” Id. at 560–61. “[W]hen standing is challenged on the basis
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`of the pleadings, we ‘accept as true all material allegations of the complaint, and . . . construe the
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`complaint in favor of the complaining party.”’ Pennell v. City of San Jose, 485 U.S. 1, 7 (1988) (quoting
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`Warth v. Seldin, 422 U.S. 490, 501 (1975)).
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`1.
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`Plaintiffs Have Associational Standing
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`“Associations may assert the standing of their own members.” Texas Ass’n of Manufacturers v.
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`United States Consumer Prod. Safety Comm’n, 989 F.3d 368, 377 (5th Cir. 2021). An association must
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`meet three elements to establish associational standing: (1) “its members would otherwise have
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`standing to sue in their own right,” (2) “the interests at stake are germane to the organization’s
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`purpose,” and (3) “neither the claim asserted nor the relief requested requires the participation of
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`individual members in the lawsuit.” Id. Plaintiffs easily meet these requirements for associational
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`standing. The Court steps through each of the three requirements below.
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`Case 1:21-cv-00840-RP Document 51 Filed 12/01/21 Page 8 of 30
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`a.
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`Plaintiffs’ Members Have Standing to Sue in Their Own Right
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`Plaintiffs’ members include social media platforms like “Facebook, Google, YouTube, [and]
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`Twitter,” as recognized by the State, (Mot. Dismiss, Dkt. 23, at 3), that would be subject to
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`regulation by the State through HB 20. Despite the State’s contention otherwise, (Mot. Dismiss,
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`Dkt. 23, at 3–4), Plaintiffs show that their members would suffer an injury-in-fact if HB 20 goes into
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`effect. “[A] plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage
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`in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,
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`and there exists a credible threat of prosecution thereunder.”’ Susan B. Anthony List v. Driehaus, 573
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`U.S. 149, 159 (2014) (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). In their complaint,
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`Plaintiffs allege that their members are “directly subject to and regulated by H.B. 20 because they
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`qualify as ‘social media platforms’ within H.B. 20’s definition of the term,” “exercise editorial
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`judgments that are prohibited by H.B. 20,” and will “face serious legal consequences for failing to
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`comply with” HB 20. (Compl, Dkt. 1, at 5–6). Plaintiffs state that some of its members, like
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`Facebook and YouTube, would be compelled to publish content that violates their policies and
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`otherwise would be removed through their exercise of editorial judgment. (Compl., Dkt. 1, at 6).
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`Plaintiffs’ members do not resemble ‘“passive receptacle[s]’ where users are free to share their
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`speech without review or rebuke unless unlawful,” as the State claims. (Mot. Dismiss, Dkt. 23, at 5).
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`Plaintiffs also allege that “Paxton has given every indication that he intends to use all legally available
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`enforcement tools against Plaintiffs’ members” and support that allegation with Paxton’s press
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`releases and posts. (Id. at 10) (“In a January 9, 2021, tweet criticizing Twitter, Facebook, and Google
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`for allegedly targeting ‘conservative’ speech, Defendant Paxton vowed, ‘As AG, I will fight them
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`with all I’ve got.’”).
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`Additionally, Plaintiffs have alleged that HB 20 threatens their members with classic
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`economic harms. “[E]conomic injury is a quintessential injury upon which to base standing.” Tex.
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`8
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`Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir. 2006). In their Complaint, Plaintiffs allege that
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`their members “will incur significant costs to comply with the provisions in Sections 2 and 7 of H.B.
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`20. The statute will force members to substantially modify the design and operation of their
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`platforms. The necessary modifications will impose onerous burdens upon members’ respective
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`platforms and services, interfering with their business models and making it more difficult for them
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`to provide high quality services to their users.” (Compl., Dkt. 1, at 7). Furthermore, Plaintiffs allege
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`their members will suffer damage to their brands and goodwill, (id. at 8), and their members will be
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`forced to disclose technical information that will cost them competitive advantage and make it
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`harder to block content, (id. at 7–8). Based on these detailed allegations, the complaint sufficiently
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`alleges the injuries to Plaintiffs’ members caused by HB 20.
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`b.
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`The Interests at Stake Are Germane to the Members’ Purpose
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`The State does not dispute this prong of the standing analysis. As Plaintiffs note in their
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`opposition brief: “Defendant does not dispute Plaintiffs satisfy the second prong. Nor could he.
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`H.B. 20’s intrusion on the rights of Internet websites and applications is germane to Plaintiffs’
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`respective interests.” (Resp. Mot. Dismiss, Dkt. 28, at 11 n.3).
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`
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`c.
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`This Lawsuit Does Not Require the Participation of Plaintiffs’
`Members
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`The State argues that Plaintiffs’ claims require the participation of Plaintiffs’ members. (Mot.
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`Dismiss, Dkt. 23, at 14). Plaintiffs seek to block the State’s enforcement of the provisions of HB 20
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`that are facially unconstitutional. A facial challenge generally is not fact intensive and does not
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`require individual members to participate. Nat’l Press Photographers Ass’n v. McCraw, 504 F. Supp. 3d
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`568, 580 (W.D. Tex. 2020) (recognizing associational standing to bring “facial” “content-based,”
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`“vagueness,” “overbreadth,” and “preemption” challenges). Plaintiffs assert facial challenges “based
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`on the doctrines of compelled speech, infringing editorial discretion, a ‘content-based’ and speaker-
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`based law, ‘vagueness, ‘overbreadth,’ ‘preemption,’ and extraterritorial regulation.” (Resp. Mot.
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`9
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`Case 1:21-cv-00840-RP Document 51 Filed 12/01/21 Page 10 of 30
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`Dismiss, Dkt. 28, at 21). Each doctrine forms the basis for finding HB 20 facially invalid. (See id.)
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`(citing Nat’l Press, 504 F. Supp. 3d at 580; Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct.
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`2361, 2378 (2018) (sustaining content-based facial challenge based on compelled speech); Miami
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`Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974) (sustaining content-based facial challenge based
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`on infringing editorial discretion); Ass’n for Accessible Medicines v. Frosh, 887 F.3d 664, 668 (4th Cir.
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`2018) (a “state law violates the extraterritoriality principle if it [] expressly applies to out-of-state
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`commerce”) (emphasis added); Garza v. Wyeth LLC, 2015 WL 364286, at *4 (S.D. Tex. Jan. 27,
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`2015) (“The preemption decision is not evidence-based but is rather a question of law.”)). While the
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`State argues the Court cannot determine whether Plaintiffs’ members are common carriers, which
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`the State argues is a crucial step in this Court’s First Amendment analysis, without the participation
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`of Plaintiffs’ members, (Mot. Dismiss, Dkt. 23, at 15), the Court finds that it can determine, if
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`necessary, whether Plaintiffs’ members are common carriers. Likewise, the Court can rule on
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`Plaintiffs’ other facial challenges, like their commerce clause claim, and conduct the proper level of
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`scrutiny analysis on Plaintiffs’ First Amendment claim. Additionally, Plaintiffs’ requested relief—
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`enjoining Paxton from enforcing Sections 2 and 7 of HB 20 against them and their members—is a
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`proper and tailored remedy that would not necessarily require the individual participation of their
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`members. “Injunctive relief ‘does not make the individual participation of each injured party
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`indispensable to proper resolution[.]”’ Texas Ent. Ass’n, Inc. v. Hegar, 10 F.4th 495, 505 (5th Cir.
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`2021) (quoting Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 342 (1977)).
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`2.
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`Plaintiffs Have Organizational Standing
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`Independent of their associational standing on behalf of their members, Plaintiffs have
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`organizational standing to challenge HB 20. In their complaint, Plaintiffs allege the “already incurred
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`costs and will continue to divert their finite resources—money, staff, and time and attention—away
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`from other pressing issues facing their members to address compliance with and the implications of
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`10
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`H.B. 20 for Internet companies.” (Compl., Dkt. 1, at 5). Plaintiffs continue that they would “no
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`longer divert those finite resources to address H.B. 20” if it were declared unlawful and enjoined.
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`(Id.). Plaintiffs’ injury as an organization need not be “large” or “substantial.” OCA-Greater Houston v.
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`Texas, 867 F.3d 604, 612 (5th Cir. 2017) (“[I]t need not measure more than an ‘identifiable trifle.’
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`This is because ‘the injury in fact requirement under Article III is qualitative, not quantitative, in
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`nature.’”) (quoting Ass’n of Cmty. Organizations for Reform Now v. Fowler, 178 F.3d 350, 357 (5th Cir.
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`1999)). Plaintiffs sufficiently allege that they have diverted resources and incurred expenses as an
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`organization to prepare for HB 20’s effects on Plaintiffs’ members. See id. at 611–14.
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`Having considered the State’s arguments and having found that Plaintiffs have both
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`associational standing to challenge HB 20 on behalf of their members and organizational standing to
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`challenge it based on their own alleged injuries, the Court denies the State’s motion to dismiss. This
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`Court’s ruling is supported by the fact that the Northern District of Florida enjoined a similar
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`Florida law that was challenged by these same exact Plaintiffs, and there was no dispute in that
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`case—in which the State of Texas filed an amicus brief—that Plaintiffs lacked standing to assert the
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`rights of their members to challenge that state law.
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`B. Plaintiffs Have Shown Likelihood of Success on the Merits
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`Plaintiffs bring several claims against the State, and the Court focuses on Plaintiffs’ claim
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`that HB 20 violates the First Amendment.1 To succeed on their motion for a preliminary injunction,
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`then, Plaintiffs must show that HB 20 compels private social media platforms to “disseminate third-
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`party content and interferes with their editorial discretion over their platforms.”2 (Prelim. Inj. Mot.,
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`Dkt. 12, at 23).
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`1 The Court need not and does not reach the issues of whether HB 20 is void for vagueness, preempted by
`the Communications Decency Act, or violates the Commerce Clause.
`2 Findings and conclusions about the merits of this case should be understood only as statements about
`Plaintiffs’ likelihood of success based on the record and law currently before this Court.
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`Social Media Platforms Exercise Editorial Discretion Protected by the First
`Amendment
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`1.
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`The parties dispute whether social media platforms are more akin to newspapers that engage
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`in substantial editorial discretion—and therefore are entitled to a higher level of protection for their
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`speech—or a common carrier that acts as a passive conduit for content posted by users—and
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`therefore are entitled to a lower level of protection, if any. Plaintiffs urge the Court to view social
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`media platforms as having editorial discretion to moderate content, and the State advocates that
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`social media platforms act as common carriers that may be compelled by the government to publish
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`speech that is objectionable. Before the Court attempts to settle that debate, the Court evaluates
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`whether the First Amendment guarantees social media platforms the right to exercise editorial
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`discretion.
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`More than twenty years ago, the Supreme Court recognized that “content on the Internet is
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`as diverse as human thought,” allowing almost any person to “become a town crier with a voice that
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`resonates farther than it could from any soapbox.” Reno v. Am. C.L. Union, 521 U.S. 844, 870 (1997).
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`The Reno Court concluded that its “cases provide no basis for qualifying the level of First
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`Amendment scrutiny that should be applied to this medium.” Id. Disseminating information is
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`“speech within the meaning of the First Amendment.” Sorrell v. IMS Health Inc., 564 U.S. 552, 570
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`(2011) (citing Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (“[I]f the acts of ‘disclosing’ and
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`‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that
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`category, as distinct from the category of expressive conduct.”)) (cleaned up).
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`Social media platforms have a First Amendment right to moderate content disseminated on
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`their platforms. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1932 (2019) (recognizing
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`that “certain private entities[] have rights to exercise editorial control over speech and speakers on
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`their properties or platforms”). Three Supreme Court cases provide guidance. First, in Tornillo, the
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`Court struck down a Florida statute that required newspapers to print a candidate’s reply if a
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`newspaper assailed her character or official record, a “right of reply” statute. 418 U.S. at 243. In
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`1974, when the opinion was released, the Court noted there had been a “communications
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`revolution” including that “[n]ewspapers have become big business . . . [with] [c]hains of
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`newspapers, national newspapers, national wire and news services, and one-newspaper towns [being]
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`the dominant features of a press that has become noncompetitive and enormously powerful and
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`influential in its capacity to manipulate popular opinion and change the course of events.” Id. at
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`248–49. Those concerns echo today with social media platforms and “Big Tech” all the while
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`newspapers are further consolidating and, often, dying out. Back to 1974, when newspapers were
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`viewed with monopolistic suspicion, the Supreme Court concluded that newspapers exercised
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`“editorial control and judgment” by selecting the “material to go into a newspaper,” deciding the
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`“limitations on the size and content of the paper,” and deciding how to treat “public issues and
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`public officials—whether fair or unfair.” Id. at 258. “It has yet to be demonstrated how
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`governmental regulation of this crucial process can be exercised consistent with First Amendment
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`guarantees of a free press as they have evolved to this time.” Id.
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`In Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., the Supreme Court held that a
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`private parade association had the right to exclude a gay rights group from having their own float in
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`their planned parade without being compelled by a state statute to do otherwise. 515 U.S. 557, 572–
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`73 (1995). The Massachusetts law at issue—which prohibited discrimination in any public place of
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`“public accommodation, resort[,] or amusement”— did not “target speech or discriminate on the
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`basis of its content, the focal point of its prohibition being rather on the act of discriminating against
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`individuals.” Id. at 572. The Court reasoned that the state’s equal-access law “alter[ed] the expressive
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`content” of the private organization. Id. “[T]his use of the State’s power violates the fundamental
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`rule of protection under the First Amendment, that a speaker has the autonomy to choose the
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`content of his own message.” Id. at 573. The Court clarified: “Indeed this general rule, that the
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`speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or
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`endorsement, but equally to statements of fact the speaker would rather avoid.” Id.
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`Finally, the Supreme Court ruled that California could not require a private utility company
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`to include a third party’s newsletters when it sent bills to customers in Pac. Gas & Elec. Co. v. Pub.
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`Utilities Comm’n of California, 475 U.S. 1, 20–21 (1986). There, for decades, the private utility company
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`sent a newsletter to its customers with monthly bills, and California required it to include the third-
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`party newsletter, a newsletter the private utility company disagreed with. Id. at 4–5. Relying on
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`Tornillo, the Court analogized that “[j]ust as the State is not free to tell a newspaper in advance what
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`it can print and what it cannot, the State is not free either to restrict [the private utility company’s]
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`speech to certain topics or views or to force [it] to respond to views that others may hold.” Id. at 11
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`(internal quotation marks and citations omitted). “[A] forced access rule that would accomplish
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`these purposes indirectly is similarly forbidden.” Id. The private utility company had the “right to be
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`free from government restrictions that abridge its own rights in order to enhance the relative voice
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`of its opponents.” Id. at 14 (internal quotation marks omitted). That was because a corporation has
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`the “choice of what not to say” and cannot be compelled to “propound political messages with
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`which they disagree.” Id. at 16.
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`The Supreme Court’s holdings in Tornillo, Hurley, and PG&E, stand for the general
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`proposition that private companies that use editorial judgment to choose whether to publish
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`content—and, if they do publish content, use editorial judgment to choose what they want to
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`publish—cannot be compelled by the government to publish other content. That proposition has
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`repeatedly been recognized by courts. (See Prelim. Inj. Mot., Dkt. 12, at 26) (collecting cases).
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`Satisfied that such editorial discretion is protected from government-compelled speech, the Court
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`turns to whether social media platforms engage in protectable editorial discretion.
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`This Court starts from the premise that social media platforms are not common carriers.3
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`“E