Citation
NetChoice, LLC d.b.a. NetChoice, et. al v. Ken Paxton, Attorney General of Texas
49 F.4th 439 (5th Cir. 2022), rev’g, 573 F.Supp. 3d 1092 (W.D. Tex. 2021)
142 Sup.Ct. 1715 (decision on motion to vacate stay)
Summary
This is a challenge to a Texas law that bars social media websites from moderating content or hiding or removing a person’s posts on certain websites. The issues in the case are very similar to the Florida litigation in NetChoice v. Moody.
Latest Action
On September 16, 2022, in a 2-1 decision written by Judge Andrew Oldham and joined by Judge Edith Jones, the Fifth Circuit issued an opinion upholding all of the Texas law that bars certain websites from moderating content and mandates transparency about policies and practices. In his 90-page opinion, Judge Oldham dismissed the facial overbreadth challenge because he characterizes content moderation as censorship, rather than as editorial prerogative, so no speech right is being limited. Also, he found that sites can defend themselves from lawsuits, so their moderation is not chilled, and he calls the harms merely speculative based on his assumptions about the facts, not all of which are in the record.
Judge Oldham then concludes that Section 230 protections from liability for content moderation are much more limited in scope than what almost every other federal court has held. He goes on to hold that the large websites can be regulated as common carriers. He added that the Texas law could be reviewed and upheld under intermediate scrutiny because it is content- and viewpoint-neutral, and he concludes that barring content moderation is an important state interest.
He then upholds the transparency and reporting regulations by finding that they are not an unreasonable burden, and they are merely factual and uncontroversial.
Amicus Brief
In April 8, 2022, the American Booksellers for Free Expression, Authors Guild, and Media Coalition Foundation submitted an amicus brief in the Fifth Circuit with other media groups. The brief argues that the last is unconstitutional for three reasons:
- It interferes with the editorial prerogative of social media websites;
- The reporting and transparency requirement are overly burdensome on protected speech, with the caveat that not all reporting and transparency requirements necessarily violate the First Amendment; and
- It singles out a certain speaker, namely a small group of websites.
Other groups in the amicus brief are: the Reporters Committee for Freedom of the Press, American Civil Liberties Union, Center for Democracy & Technology, and Media Law Resource Center.
Background
On September 22, 2021, NetChoice and the Computer & Communications Industry Association filed a lawsuit in the U.S. District Court for the Western District of Texas, challenging Texas House Bill 20. The law barred social media companies with more than 50 million users from censoring user content; barred email providers from blocking emails unless the email had obscene or illegal content or malicious code; and required platforms to provide information about their moderation policies.
On December 1, 2021, U.S. District Judge Mark T. Pittman granted a preliminary injunction blocking enforcement of the law. Judge Pittman issued a strong opinion offering multiple reasons for blocking the law. He found that social media moderation is an editorial function, which is protected by the First Amendment. The requirements that sites report to the government how they moderate and that they inform users about moderation decisions burden the editorial functions of the websites. Judge Pittman also found that the law discriminates based on the speaker and the content of their speech. Since the law is content-based, it must satisfy strict scrutiny, but it fails that test because there is no compelling state interest in picking and choosing to amplify certain speech. Nor is the law narrowly tailored to address the state’s proffered compelling interest. He also enjoined the transparency requirements in the law, holding that they are unconstitutionally vague because the law does not adequately define terms such as “equal access,” “potential violations,” and “primarily produce certain content of their own.”
The state of Texas filed an appeal with the Fifth Circuit Court of Appeals. It argued that social media websites should be considered common carriers like telephones and railroads, which would allow the government to prevent them from limiting who could use the websites. The state also argued that the law regulates conduct and not content.
On May 9, 2022, the case was argued before the Fifth Circuit Court of Appeals. The panel consisted of Judge Edith Jones, a Ronald Reagan appointee; Judge Leslie Southwick, a George W. Bush appointee; and Judge Andrew Oldham, a Donald Trump appointee. Shortly after the oral argument, the Fifth Circuit Court of Appeals, without further explanation or comment, issued an order staying the injunction issued by the district court, which allowed the law to take effect.
Plaintiffs filed an emergency motion with the U.S. Supreme Court, which vacated the stay — reinstating the injunction — by a vote of 5-4. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented from the denial of certiorari and issued an opinion that they were doing so because the remedy provided by the Court was “extraordinary.”