Case: 21-51178 Document: 00516474571 Page: 1 Date Filed: 09/16/2022
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 21-51178
`
`
`NetChoice, L.L.C., a 501(c)(6) District of Columbia organization doing
`business as NetChoice; Computer Communications
`Industry Association, a 501(c)(6) non-stock Virginia Corporation
`doing business as CCIA,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`September 16, 2022
`
`Lyle W. Cayce
`Clerk
`
`Plaintiffs—Appellees,
`
`
`
`versus
`
`
`Ken Paxton, in his official capacity as Attorney General of Texas,
`
`
`Defendant—Appellant.
`
`
`
`
`Appeal from the United States District Court
`for the Western District of Texas
`USDC No. 1:21-cv-840
`
`
`
`Before Jones, Southwick, and Oldham, Circuit Judges.
`Andrew S. Oldham, Circuit Judge:*
`
`A Texas statute named House Bill 20 generally prohibits large social
`media platforms from censoring speech based on the viewpoint of its speaker.
`The platforms urge us to hold that the statute is facially unconstitutional and
`hence cannot be applied to anyone at any time and under any circumstances.
`
`
`
`
`
`* Judge Jones joins all but Part III.E and Part V.B.3 of this opinion.
`
`1
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`

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`No. 21-51178
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`In urging such sweeping relief, the platforms offer a rather odd
`inversion of the First Amendment. That Amendment, of course, protects
`every person’s right to “the freedom of speech.” But the platforms argue
`that buried somewhere in the person’s enumerated right to free speech lies a
`corporation’s unenumerated right to muzzle speech.
`
`The implications of the platforms’ argument are staggering. On the
`platforms’ view, email providers, mobile phone companies, and banks could
`cancel the accounts of anyone who sends an email, makes a phone call, or
`spends money in support of a disfavored political party, candidate, or
`business. What’s worse, the platforms argue that a business can acquire a
`dominant market position by holding itself out as open to everyone—as
`Twitter did in championing itself as “the free speech wing of the free speech
`party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist
`of “the modern public square,” Packingham v. North Carolina, 137 S. Ct.
`1730, 1737 (2017), Twitter unapologetically argues that it could turn around
`and ban all pro-LGBT speech for no other reason than its employees want to
`pick on members of that community, Oral Arg. at 22:39–22:52.
`
`Today we reject the idea that corporations have a freewheeling First
`Amendment right to censor what people say. Because the district court held
`otherwise, we reverse its injunction and remand for further proceedings.
`
`2
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`

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`No. 21-51178
`
`I.
`
`A.
`
`This case involves HB 20, a Texas statute that regulates large social
`
`media platforms.1 The law regulates platforms2 with more than 50 million
`monthly active users (“Platforms”), such as Facebook, Twitter, and
`YouTube. Tex. Bus. & Com. Code § 120.002(b). In enacting HB 20,
`the Texas legislature found that the Platforms “function as common carriers,
`are affected with a public interest, are central public forums for public debate,
`and have enjoyed governmental support in the United States.” It further
`found that “social media platforms with the largest number of users are
`common carriers by virtue of their market dominance.”
`
`Two sections of HB 20 are relevant to this suit. First is Section 7,
`which addresses viewpoint-based censorship of users’ posts. Section 7
`provides:
`
`A social media platform may not censor a user, a user’s
`expression, or a user’s ability to receive the expression of
`another person based on:
`
`
`
`
`
`1 The full text of HB 20 can be viewed here: https://perma.cc/9KF3-LEQX. The
`portions of HB 20 relevant to this lawsuit are codified at Texas Business and
`Commerce Code §§ 120.001–151 and Texas Civil Practice and Remedies
`Code §§ 143A.001–08.
`2 HB 20 defines “social media platform” to include “an Internet website or
`application that is open to the public, allows a user to create an account, and enables users
`to communicate with other users for the primary purpose of posting information,
`comments, messages, or images.” Tex. Bus. & Com. Code § 120.001(1). The
`definition expressly excludes internet service providers, email providers, and any “online
`service, application, or website” that “consists primarily of news, sports, entertainment,
`or other information or content that is not user generated but is preselected by the
`provider,” and “for which any chat, comments, or interactive functionality is incidental to,
`directly related to, or dependent on the provision of [that] content.” Id. § 120.001(1)(A)–
`(C).
`
`3
`
`

`

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`No. 21-51178
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`(1) the viewpoint of the user or another person;
`
`(2) the viewpoint represented in the user’s expression
`or another person’s expression; or
`
`(3) a user’s geographic location in this state or any part
`of this state.
`
`Tex. Civ. Prac. & Rem. Code § 143A.002(a). “Censor” means “to
`block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal
`access or visibility to, or otherwise discriminate against expression.” Id.
`§ 143A.001(1). For Section 7 to apply, a censored user must reside in Texas,
`do business in Texas, or share or receive expression in Texas. Id.
`§ 143A.004(a)–(b).
`
`This prohibition on viewpoint-based censorship contains several
`
`qualifications. Section 7 does not limit censorship of expression that a
`Platform “is specifically authorized to censor by federal law”; expression
`that “is the subject of a referral or request from an organization with the
`purpose of preventing the sexual exploitation of children and protecting
`survivors of sexual abuse from ongoing harassment”; expression that
`“directly incites criminal activity or consists of specific threats of violence
`targeted against a person or group because of their race, color, disability,
`religion, national origin or ancestry, age, sex, or status as a peace officer or
`judge”; or “unlawful expression.” Id. § 143A.006.
`
`Finally, Section 7 provides a narrow remedial scheme. If a Platform
`
`violates Section 7 with respect to a user, that user may sue for declaratory and
`injunctive relief and may recover costs and attorney’s fees if successful. Id.
`§ 143A.007. The Attorney General of Texas may also sue to enforce Section
`7 and may recover attorney’s fees and reasonable investigative costs if
`successful. Id. § 143A.008. Damages are not available.
`
`4
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`

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`No. 21-51178
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`The other relevant provision of HB 20 is Section 2. It imposes certain
`
`disclosure and operational requirements on
`the Platforms. These
`requirements fall into three categories. First, Platforms must disclose how
`they moderate and promote content and publish an “acceptable use policy.”
`Tex. Bus. & Com. Code §§ 120.051–52. This policy must inform users
`about the types of content allowed on the Platform, explain how the Platform
`enforces its policy, and describe how users can notify the Platform of content
`that violates the policy. Id. § 120.052(b).
`
`Platforms must also publish a “biannual transparency report.” Id.
`
`§ 120.053. This report must contain various high-level statistics related to the
`Platform’s content-moderation efforts, including the number of instances in
`which the Platform was alerted to the presence of policy-violating content;
`how the Platform was so alerted; how many times the Platform acted against
`such content; and how many such actions were successfully or unsuccessfully
`appealed. See ibid.
`
`Last, Platforms must maintain a complaint-and-appeal system for
`
`their users. See id. §§ 120.101–04. When a Platform removes user-submitted
`content, it must generally explain the reason to the user in a written statement
`issued concurrently with the removal. Id. § 120.103(a). It also must permit
`the user to appeal the removal and provide a response to the appeal within 14
`business days. Id. § 120.104. Section 2 includes various exceptions to these
`notice-and-appeal requirements. See id. § 120.103(b).
`
`Only the Texas Attorney General may enforce Section 2. Id.
`
`§ 120.151. The Attorney General may seek injunctive relief but not damages.
`Ibid.
`
`B.
`
`Industry
`the Computer & Communications
`NetChoice and
`
`Association are trade associations representing companies that operate
`
`5
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`

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`No. 21-51178
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`Platforms covered by HB 20. They sued the Attorney General of Texas
`(“Texas”) on September 22, 2021, before HB 20 went into effect.
`
`The district court issued a preliminary injunction on December 1,
`
`2021. It first held that Section 7 is facially unconstitutional. The court
`“start[ed] from the premise that social media platforms are not common
`carriers.” It then concluded that Platforms engage in “some level of editorial
`discretion” by managing and arranging content, and viewpoint-based
`censorship is part of that editorial discretion. It further held that this editorial
`discretion is protected by cases like Miami Herald Publishing Co. v. Tornillo,
`418 U.S. 241 (1974). So according to the district court, HB 20’s prohibition
`on viewpoint-based censorship unconstitutionally interfered with the
`Platforms’ protected editorial discretion. The court did not explain why a
`facial attack on Section 7 was appropriate, other than asserting that Section 7
`is “replete with constitutional defects” and the court believed “nothing . . .
`could be severed and survive.”
`
`The district court then held that Section 2 is facially unconstitutional.
`
`It reasoned that “Section 2’s disclosure and operational provisions are
`inordinately burdensome given the unfathomably large numbers of posts on
`these sites and apps.” Moreover, the court reasoned that Section 2 will “chill
`the social media platforms’ speech” by disincentivizing viewpoint-based
`censorship. Again, the court did not explain why a facial challenge to Section
`2 was appropriate, other than stating that it imposes “onerously burdensome
`disclosure and operational requirements.”
`
`The district court also found that HB 20 discriminates based on
`
`content and speaker, because it permits censorship of some content (like
`specific threats of violence directed at a protected class) and only applies to
`large social media platforms. It then held that HB 20 fails any level of
`heightened scrutiny. Finally, it issued a preliminary injunction.
`
`6
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`

`

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`No. 21-51178
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`Texas timely appealed. On December 15, 2021, Texas moved for a
`
`stay of the preliminary injunction. We granted that motion on May 11, 2022.
`On May 31, 2022, in a 5–4 decision, the Supreme Court vacated our stay.
`Justice Kagan noted her dissent. Justice Alito, joined by Justice Thomas and
`Justice Gorsuch, authored a six-page dissenting opinion to argue that our stay
`should have remained undisturbed.
`
`II.
`
`We review the district court’s preliminary injunction for abuse of
`
`discretion. Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 894 F.3d
`692, 696 (5th Cir. 2018). A district court abuses its discretion if it grants an
`injunction based on clearly erroneous factual findings or erroneous
`conclusions of law. Ibid.
`
`A preliminary injunction is “an extraordinary remedy that may only
`be awarded upon a clear showing that the plaintiff is entitled to such relief.”
`Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff
`seeking a preliminary injunction must establish that he is likely to succeed on
`the merits, that he is likely to suffer irreparable harm in the absence of
`preliminary relief, that the balance of equities tips in his favor, and that an
`injunction is in the public interest.” Id. at 20.
`
`III.
`
`The Platforms contend that Section 7 of HB 20 is facially
`unconstitutional. We disagree. We (A) first reject the Platforms’ facial
`overbreadth challenge because Section 7 does not chill speech; if anything, it
`chills censorship. Then we (B) turn to the First Amendment’s text and
`history, which offer no support for the Platforms’ claimed right to censor.
`Next, applying Supreme Court precedent, we (C) hold that Section 7 does
`not regulate the Platforms’ speech at all; it protects other people’s speech and
`regulates the Platforms’ conduct. Our decision (D) is reinforced by 47 U.S.C.
`
`7
`
`

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`No. 21-51178
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`§ 230, which reflects Congress’s judgment that the Platforms are not
`“speaking” when they host other people’s speech. Our decision (E) is still
`further reinforced by the common carrier doctrine, which vests the Texas
`Legislature with the power to prevent the Platforms from discriminating
`against Texas users. Finally, even if all of that’s wrong and Section 7 does
`regulate the Platforms’ speech, it (F) satisfies the intermediate scrutiny that
`applies to content-neutral rules.
`
`A.
`
`We begin with the First Amendment overbreadth doctrine. It
`(1) offers a facial constitutional remedy that protects speech. It (2) does not
`apply here because if Section 7 chills anything, it chills censorship. And the
`Platforms’ parade of whataboutisms proves their real complaint is a purely
`speculative one about how HB 20 will be enforced. The Platforms are
`therefore not entitled to pre-enforcement facial relief against Section 7.
`
`1.
`
`The Platforms have asked a federal court to invalidate HB 20 in its
`entirety before Texas even tries to enforce it.3 To put it mildly, pre-
`enforcement facial challenges to legislative acts are “disfavored for several
`
`
`
`
`
`3 The plaintiff trade associations—which include every Platform subject to HB
`20—asked the district court to find the statute could never be constitutionally enforced
`against them. They did so before the law could be enforced against anyone. See 13B
`Charles Alan Wright et al., Federal Practice and Procedure § 3532.3
`(3d ed. Apr. 2022 Update) (stressing the “distinctions between the ripeness of broad
`attacks on the legitimacy of any regulation and the nonripeness of more particular attacks
`on more specific applications”). During briefing in the district court, the Platforms
`characterized their suit as a facial challenge to HB 20. The district court’s opinion thus
`properly treated this suit as a facial challenge, and the Platforms do not object to that
`characterization on appeal.
`
`8
`
`

`

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`No. 21-51178
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`reasons.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
`450 (2008). Three bear emphasis here.
`
`First, the judicial power vested in us by Article III does not include the
`power to veto statutes. And that omission is no accident: The Founders
`expressly considered giving judges that power, and they decided not to do so.
`Several delegates at the Constitutional Convention suggested creating a
`“Council of Revision” consisting of federal judges and the executive.
`Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 954
`(2018). They wanted to empower this Council to veto Congress’s legislation,
`subject to congressional override. Ibid. A veto would render the legislation
`“void.” Ibid. But despite the best efforts of James Wilson and James
`Madison, the Convention rejected the proposal—three times over. Id. at
`957–59. That means we have no power to “strike down,” “void,” or
`“invalidate” an entire law. See id. at 936 (explaining that “federal courts have
`no authority to erase a duly enacted law from the statute books” but have
`only the power “to decline to enforce a statute in a particular case or
`controversy” and “to enjoin executive officials from taking steps to enforce
`a statute”); Borden v. United States, 141 S. Ct. 1817, 1835–36 (2021) (Thomas,
`J., concurring in the judgment) (noting that “[c]ourts have no authority to
`strike down statutory text” and that “a facial challenge, if successful, has the
`same effect as nullifying a statute” (quotations omitted)); Kevin C. Walsh,
`Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 756 (2010) (explaining
`that the Founders did not conceive of judicial review as the power to “strike
`down” legislation).
`
`Second, the judicial power vested in us by Article III is limited to
`deciding certain “Cases” and “Controversies.” U.S. Const. art. III, § 2.
`A federal court “has no jurisdiction to pronounce any statute, either of a state
`or of the United States, void, because irreconcilable with the constitution,
`except as it is called upon to adjudge the legal rights of litigants in actual
`
`9
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`

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`No. 21-51178
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`controversies.” Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration,
`113 U.S. 33, 39 (1885); accord Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178
`(1803). This limitation on federal jurisdiction to “actual controversies”
`prevents courts from “ancitipat[ing] a question of constitutional law in
`advance of the necessity of deciding it.” Liverpool, 113 U.S. at 39; see also
`Broadrick v. Oklahoma, 413 U.S. 601, 610–11 (1973) (“[U]nder our
`constitutional system courts are not roving commissions assigned to pass
`judgment on the validity of the Nation’s laws.”). And it makes pre-
`enforcement facial challenges a particularly nettlesome affair. Such suits
`usually do not present “flesh-and-blood legal problems with data relevant
`and adequate to an informed judgment.” New York v. Ferber, 458 U.S. 747,
`768 (1982) (quotation omitted). Instead, they require the court “to consider
`every conceivable situation which might possibly arise in the application of
`complex and comprehensive legislation,” forcing courts to deploy the severe
`power of judicial review “with reference to hypothetical cases.” United
`States v. Raines, 362 U.S. 17, 21–22 (1960).
`
`Third, federalism. Invalidate-the-law-now, discover-how-it-works-
`later judging is particularly troublesome when reviewing state laws, as it
`deprives “state courts [of] the opportunity to construe a law to avoid
`constitutional infirmities.” Ferber, 458 U.S. at 768. And “facial challenges
`threaten to short circuit the democratic process by preventing laws
`embodying the will of the people from being implemented in a manner
`consistent with the Constitution.” Wash. State Grange, 552 U.S. at 451. The
`respect owed to a sovereign State thus demands that we look particularly
`askance at a litigant who wants unelected federal judges to countermand the
`State’s democratically accountable policymakers.
`
`In accordance with the disfavor that attaches to pre-enforcement
`facial challenges, the legal standard for them is extraordinarily high.
`Ordinarily, plaintiffs bringing this sort of “facial challenge to a legislative
`
`10
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`

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`No. 21-51178
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`Act” must “establish that no set of circumstances exists under which the Act
`would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987); see also
`Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2387 (2021). “Such
`a challenge is the most difficult to mount successfully.” City of El Cenizo v.
`Texas, 890 F.3d 164, 187 (5th Cir. 2018) (quotation omitted). The Platforms
`do not even try to show that HB 20 is “unconstitutional in all of its
`applications.” Wash. State Grange, 552 U.S. at 449.4
`
`Instead, their challenge is premised on First Amendment overbreadth
`doctrine. Under this doctrine, the Supreme Court has “recognized a second
`type of facial challenge, whereby a law may be invalidated as overbroad if a
`substantial number of its applications are unconstitutional, judged in relation
`to the statute’s plainly legitimate sweep.” Bonta, 141 S. Ct. at 2387 (quotation
`omitted). This doctrine is limited to “the First Amendment context.” Ibid.
`
`“Overbreadth is a judicially created doctrine designed to prevent the
`chilling of protected expression.” Massachusetts v. Oakes, 491 U.S. 576, 584
`(1989) (plurality op.); see generally Lewis D. Sargentich, Note, The First
`Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970). As the
`seminal case explained, the overbreadth doctrine addresses “threat[s] to
`censure comments on matters of public concern.” Thornhill v. Alabama, 310
`U.S. 88, 97 (1940). The doctrine’s rationale is that “[m]any persons, rather
`than undertake the considerable burden (and sometimes risk) of vindicating
`their rights through case-by-case litigation, will choose simply to abstain from
`protected speech—harming not only themselves but society as a whole,
`
`
`
`
`
`4 For example, the Platforms do not argue that HB 20’s provision restricting
`censorship based on “a user’s geographic location in [Texas]” could not be constitutionally
`applied to them. Tex. Civ. Prac. & Rem. Code § 143A.002(a)(3). While they
`vigorously argue that viewpoint-based censorship is protected speech, they nowhere
`contend that the First Amendment protects censorship based on geographic location.
`
`11
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`No. 21-51178
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`which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks,
`539 U.S. 113, 119 (2003) (citation omitted).
`
`Consistent with the overbreadth doctrine’s rationale, the Supreme
`Court has only applied it where there is a substantial risk that the challenged
`law will chill protected speech or association. See, e.g., Bigelow v. Virginia, 421
`U.S. 809, 817–18 (1975) (declining to address facial overbreadth challenge
`where statutory amendment removed risk that statute “will chill the rights of
`others”); Law Students C.R. Rsch. Council, Inc. v. Wadmond, 401 U.S. 154,
`167 (1971) (denying facial relief where “careful administration” of state
`regulatory scheme could avoid “chilling effects upon the exercise of
`constitutional freedoms”). The Court has also instructed that “the
`overbreadth doctrine is strong medicine” that should be employed “only as
`a last resort.” L.A. Police Dep’t v. United Reporting Pub. Corp., 528 U.S. 32,
`39 (1999) (quotation omitted). And the overbreadth doctrine’s function
`“attenuates” as the regulated expression moves from “pure speech toward
`conduct.” Id. at 40 (quotation omitted).
`
`2.
`
`The overbreadth doctrine does not apply to Section 7. That’s for three
`reasons.
`
`First, the primary concern of overbreadth doctrine is to avoid chilling
`speech. But Section 7 does not chill speech; instead, it chills censorship. So there
`can be no concern that declining to facially invalidate HB 20 will inhibit the
`marketplace of ideas or discourage commentary on matters of public concern.
`Perhaps as-applied challenges to speculative, now-hypothetical enforcement
`actions will delineate boundaries to the law. But in the meantime, HB 20’s
`prohibitions on censorship will cultivate rather than stifle the marketplace of
`ideas that justifies the overbreadth doctrine in the first place.
`
`12
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`No. 21-51178
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`The Platforms, of course, argue that their censorship somehow should
`be construed as speech for First Amendment purposes. We deal with this
`contention at length in Parts III.B, III.C, III.D, and III.E, infra. But even
`stipulating arguendo that censorship can enjoy First Amendment protection,
`it’s a far cry from the “pure speech” that’s the core concern of the
`overbreadth doctrine. See United Reporting, 528 U.S. at 40. At most, the
`Platforms’ censorship is, in the district court’s words, a “way that online
`services express themselves and effectuate their community standards.”
`That is, censorship is at best a form of expressive conduct, for which the
`overbreadth doctrine provides only “attenuate[d]” protection. Ibid.
`(quotation omitted); see also Broadrick, 413 U.S. at 614 (“[O]verbreadth
`scrutiny has generally been somewhat less rigid in the context of statutes
`regulating conduct in the shadow of the First Amendment, but doing so in a
`neutral, noncensorial manner.”).
`
`Tellingly, the Platforms have pointed to no case applying the
`overbreadth doctrine to protect censorship rather than speech. To the
`contrary, the Platforms principally rely on three cases. See Miami Herald, 418
`U.S. 241; PG&E v. Public Utilities Commission of California, 475 U.S. 1 (1986);
`and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515
`U.S. 557 (1995). But all three involved challenges to concrete applications of
`an allegedly unconstitutional law, raised by a defendant in state court
`proceedings. So even if these cases supported the Platforms’ argument about
`their substantive First Amendment rights, they would provide no support for
`the Platforms’ attempt to use the First Amendment as a sword to facially
`invalidate a law before it has been applied to anyone under any circumstances.
`
`Second, overbreadth adjudication is meant to protect third parties
`who cannot “undertake the considerable burden” of as-applied litigation and
`whose speech is therefore likely to be chilled by an overbroad law. Hicks, 539
`U.S. at 119; see also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1586
`
`13
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`

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`No. 21-51178
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`(2020) (Thomas, J., concurring) (explaining that overbreadth doctrine
`“allow[s] individuals to challenge a statute based on a third party’s
`constitutional rights”). Courts have deemed this chilling effect on third
`parties particularly worrisome when the overbroad law imposes criminal
`sanctions. See, e.g., Gooding v. Wilson, 405 U.S. 518, 521 (1972).
`
`This rationale for overbreadth adjudication is wholly inapposite here.
`First of all, there are no third parties to chill. The plaintiff trade associations
`represent all the Platforms covered by HB 20. Additionally, unlike individual
`citizens potentially subject to criminal sanctions—the usual beneficiaries of
`overbreadth rulings—the entities subject to HB 20 are large, well-heeled
`corporations that have hired an armada of attorneys from some of the best
`law firms in the world to protect their censorship rights. And any fear of
`chilling is made even less credible by HB 20’s remedial scheme. Not only are
`criminal sanctions unavailable; damages are unavailable. It’s hard to see how
`the Platforms—which have already shown a willingness to stand on their
`rights—will be so chilled by the prospect of declaratory and injunctive relief
`that a facial remedy is justified.
`
`Third, the Platforms principally argue against HB 20 by speculating
`
`about the most extreme hypothetical applications of the law. Such
`whataboutisms further exemplify why it’s inappropriate to hold the law
`facially unconstitutional in a pre-enforcement posture.
`
`Texas enacted HB 20 to address “the Platforms’ evolution into
`
`internet censors.” Explaining the perceived need for the law, Texas and its
`amici cite numerous instances in which the Platforms have censored what
`Texas contends is pure political speech. For example, one amicus brief
`documents the Platforms’ censorship of fifteen prominent celebrities and
`political figures—including five holding federal elected office. See Brief for
`Amici Curiae The Babylon Bee, LLC, et al. at 26–38. Texas also points to the
`
`14
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`No. 21-51178
`
`Platforms’ “discriminat[ion] against Americans and in favor of foreign
`adversaries” and censorship of even a congressional hearing that featured
`disfavored viewpoints.
`
`The Platforms do not directly engage with any of these concerns.
`
`Instead, their primary contention—beginning on page 1 of their brief and
`repeated throughout and at oral argument—is that we should declare HB 20
`facially invalid because it prohibits the Platforms from censoring “pro-Nazi
`speech, terrorist propaganda, [and] Holocaust denial[s].” Red Br. at 1.
`
`Far from justifying pre-enforcement facial invalidation, the Platforms’
`
`obsession with terrorists and Nazis proves the opposite. The Supreme Court
`has instructed that “[i]n determining whether a law is facially invalid,” we
`should avoid “speculat[ing] about ‘hypothetical’ or ‘imaginary’ cases.”
`Wash. State Grange, 552 U.S. at 449–50. Overbreadth doctrine has a
`“tendency . . . to summon forth an endless stream of fanciful hypotheticals,”
`and this case is no exception. United States v. Williams, 553 U.S. 285, 301
`(2008). But it’s improper to exercise the Article III judicial power based on
`“hypothetical cases thus imagined.” Raines, 362 U.S. at 22; cf. Sineneng-
`Smith, 140 S. Ct. at 1585–86 (Thomas, J., concurring) (explaining the tension
`between overbreadth adjudication and the constitutional limits on judicial
`power).
`
`If we focus instead on “the statute’s facial requirements,” Wash.
`State Grange, 552 U.S. at 450, its language renders implausible many of the
`Platforms’ extreme hypothesized applications of the law. HB 20 expressly
`permits the Platforms to censor any unlawful expression and certain speech
`that “incites criminal activity or consists of specific threats”—not to
`mention any content the Platforms are authorized to censor by federal law.
`Tex. Civ. Prac. & Rem. Code § 143A.006(a). So at a minimum, we
`should avoid “determin[ing] the constitutionality of [HB 20] in hypothetical
`
`15
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`Case: 21-51178 Document: 00516474571 Page: 16 Date Filed: 09/16/2022
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`No. 21-51178
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`situations where it is not even clear the State itself would consider its law
`applicable.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 382 (1992).
`Or as one amicus puts it, the Platforms at this early stage may not use
`borderline hypotheticals involving vile expression to pretermit consideration
`of “what actually is at stake—namely, the suppression of domestic political,
`religious, and scientific dissent.” Brief of Amicus Curiae Prof. Philip
`Hamburger at 21.
`
`In short, Section 7 chills no speech whatsoever. To the extent it chills
`
`anything, it chills censorship. That is, Section 7 might make censors think
`twice before removing speech from the Platforms
`in a viewpoint-
`discriminatory manner. But we cannot find any cases, from any court, that
`suggest a would-be censor can bring a First Amendment overbreadth
`challenge because a regulation chills its efforts to prohibit others from
`speaking.
`
`B.
`
`We turn now to the merits of the Platforms’ First Amendment claim.
`As always, we start with the original public meaning of the Constitution’s
`text. We need not tarry long here because the Platforms—by pointing to no
`evidence whatsoever on this point—do not contend that the First
`Amendment’s history and original understanding provide any basis for
`invalidating Section 7.
`
`The First Amendment prevents the government from enacting laws
`
`“abridging the freedom of speech, or of the press.” U.S. Const. amend. I;
`see Gitlow v. New York, 268 U.S. 652 (1925) (incorporating this right against
`the States). At the Founding and “[f]or most of our history, speech and press
`freedoms entailed two common-law rules—first, a prohibition on prior
`restraints and, second, a privilege of speaking in good faith on matters of
`public concern.” Jud Campbell, The Emergence of Neutrality, 131 Yale L.J.
`
`16
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`Case: 21-51178 Document: 00516474571 Page: 17 Date Filed: 09/16/2022
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`No. 21-51178
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`861, 874–75 (2022). The first rule was central to the Speech Clause as
`originally understood, because the “core abuse against which it was directed
`was the scheme of licensing laws implemented by the monarch and
`Parliament to contain the ‘evils’ of the printing press in 16th- and 17-century
`England.” Thomas v. Chicago Park Dist., 534 U.S. 316, 320 (2002). For
`example, the Printing Act of 1662 required all printers to obtain a license and
`then “required that all works be submitted for approval to a government
`official, who wielded broad authority to suppress works that he found to be
`heretical, seditious, schismatical, or offensive.” Ibid. (quotation omitted).
`
`Licens