In NetChoice, L.L.C. (1) v. Paxton, the Fifth Circuit heard First Amendment claims of trade associations representing companies affected by Texas House Bill 20, which regulates the ability of online platforms to censor the viewpoints of their users. (2) The court reversed the Western District of Texas's preliminary injunction and held that the statute does not violate the First Amendment. (3) Under First Amendment doctrine, the court held the statute does not chill the speech of online platforms, it regulates the conduct of online platforms rather than their speech in light of 47 U.S.C. [section] 230, and assuming the statute did regulate their speech, the regulations survive the intermediate scrutiny test applied to content-neutral rules. (4) Additionally, the court concluded that common carrier doctrine further empowered the Texas legislature to prevent online platforms from discriminating against the viewpoints of Texas users. (5) This case created a split with the Eleventh Circuit's decision in NetChoice, LLC v. Attorney General of Florida which invalidated a similar Florida statute on First Amendment grounds. (6) The United States Supreme Court heard both cases on February 26, 2024. (7)
I. BACKGROUND
On September 9, 2021, Texas Governor Greg Abbott signed House Bill 20 into law. (8) The provisions of House Bill 20 apply to social media platforms with more than fifty million monthly users in the United States. (9) The trade associations NetChoice and the Computer & Communications Industry Association (CCIA) sued the Attorney General of Texas arguing that House Bill 20 was an unconstitutional violation of the First Amendment with a focus on two provisions of the law: Section 2 and Section 7. (10) Section 2 requires social media platforms to disclose how they moderate content, publish a biannual transparency report, and create a system of notice and appeal when the platform removes user-submitted content. (11) Section 7 prohibits a social media platform from censoring "a user, a user's expression, or a user's ability to receive the expression of another person based on..." viewpoint or geographic location in Texas. (12)
On December 1, 2021, the district court held for the plaintiffs and issued a preliminary injunction against House Bill 20 finding that both Section 2 and Section 7 of the law were facially unconstitutional, that the law discriminates based on content and speaker since it permits some censorship and only applies to large social media platforms, and that the law fails the heightened scrutiny required by the First Amendment. (13) The defendant appealed to the Fifth Circuit and moved for a stay of the preliminary injunction, which the Fifth Circuit granted and the Supreme Court vacated. (14)
II. ANALYSIS
On appeal, the Fifth Circuit reversed the district court's preliminary injunction, rejecting the appellee's contention that Section 2 (platform disclosure requirements) and Section 7 (prohibition of censorship by platforms) of House Bill 20 unconstitutionally chill their speech. (15)
A. Constitutionality of the Prohibition on Platform Censorship of User Viewpoints
The court began with Section 7 and considered judicial doctrine regarding facial challenges to statutes, First Amendment doctrine, and common carrier doctrine. (16)
1. Pre-Enforcement Facial Challenges and Application of First Amendment Overbreadth Doctrine
The court began by noting the online platforms argued that it must invalidate House Bill 20 entirely before any instance of its enforcement under the First Amendment overbreadth doctrine. (17) Before applying the doctrine, the court recognized that judicial disfavor to pre-enforcement facial challenges such as this one must meet an "extraordinarily high legal standard" for three reasons. (18) First, the court looked to the Founders to conclude that there was no intention to allow Article III judges to void legislation, as they expressly rejected this mechanism upon consideration. (19) Additionally, Article III limits the judicial power to decide "Cases" and "Controversies" which prohibits courts from "anticipat[ing] a question of constitutional law in advance of the necessity of deciding it." (20) Finally, the court considered the risk of facial challenges to a state statute in the federalist system, as it creates an avenue for unelected judges to invalidate the decisions of an elected legislature. (21) With these considerations, the court concludes that a pre-enforcement facial challenge to legislation must show that there is no situation where the law in question would be valid, and they found the online platforms made no attempt to argue this circumstance. (22)
The court turned to the platforms' argument regarding Section 7 of House Bill 20 under the overbreadth doctrine, which is the other valid facial challenge to a law like House Bill 20. (23) Courts apply this doctrine to invalidate a law only "where there is a substantial risk that the challenged law will chill protected speech or association" in the First Amendment context. (24) Crucially for the court's analysis, the overbreadth doctrine "'attenuates' as the regulated expression as the regulated expression moves from 'pure speech towards conduct." (25)
These considerations led the court to reject the online platforms' overbreadth argument with respect to Section 7 (the prohibition on platform censorship of user viewpoints) on three grounds. (26) First, the court holds that platform censorship addressed in Section 7 constitutes conduct rather than the "pure speech" at which the doctrine is aimed to protect. (27) Then the court looked to the context of the overbreadth doctrine, which seeks to address the constitutional rights of third parties whose speech is likely to be chilled because they must avoid the "burden" and risk of litigation due to an overbroad law. (28) The court illustrated this point with individual citizens who refrain from expression due to criminal sanctions imposed by an overbroad law as the exemplary third party the doctrine is intended to protect. (29) In stark contrast to the example, NetChoice and CCIA represent all the parties regulated under Section 7, all the parties have the resources to litigate an enforcement action under Section 7, and Section 7 only provides for declaratory and injunctive relief rather than criminal sanctions or even damages. (30) Finally, the court cited the Supreme Court's requirement to avoid speculation about hypothetical cases under the overbreadth doctrine and assessed the facial requirements of the statute to find that House Bill 20 allows the censorship of "unlawful expression" and speech that "incites criminal activity or consists of specific threats." (31)
2. Analysis of the Merits of the Platforms' First Amendment Claim
The platforms also claimed that Section 7 regulations prohibiting censorship violated their First Amendment rights which they exercise through content moderation. (32) First Amendment doctrine prohibits regulations that force a host to express something or "interfer[e] with the host's own message." (33) Thus, in its analysis of applicable precedent, the court found that a party that hosts speech can make a First Amendment challenge to a law when it compels the host to speak or restricts the host's own speech. (34)
In its application of precedent on compelled speech, the court distinguished the Section 7 regulations from the unconstitutional right-of-reply statute at issue in Miami Herald, where a newspaper publishing critical commentary about a public figure was required to provide space in its paper for that party to publish a reply. (35) In Miami Herald, the Supreme Court found the right-of-reply statute unconstitutional because newspapers exercise discretion in affirmatively choosing to publish material, so they are essentially speaking to the value of the speech that they publish. (36) As a result, a regulation requiring a newspaper to publish certain information effectively forces them to speak. (37) In contrast, the court here concluded online social media platforms do not exercise the same form of discretion in moderating content. (38) Rather, the court characterized social media platforms as receivers of user information with no editorial discretion outside filtering "obscene and spam-related content," which fails to meet the same level of "substantive, discretionary review akin to newspaper editors." (39)
The court rejected the platforms' counterargument that forced hosting of speech could infringe on their ability to express their own message since someone could equate the hosting of certain speech with an expression of support for its message. (40) First, they reasoned that the Supreme Court rejected this premise in its precedent except where the host is "intimately connected" with the speech. (41) Analogizing this distinction to the case at hand, the court held social media platforms lack the requisite connection that would cause a party to attribute speech on their platform to the company itself because they permit any user to post on virtually any topic as long as the user agrees to their "boilerplate terms of service." (42)
On the second leg of its analysis, the court found Section 7 does not restrict social media platforms from speaking. (43) First, it reasoned platforms do not have limited space to express their speech like the newspaper in Miami Herald or the newsletter in PG&E where regulatory requirements on what had to be included harmed the parties to speak as they would in their own forums. (44) Second, platforms have the ability to distance themselves from any speech they host unlike parade organizers or any other speech host who is "intimately connected" with the speech they are hosting. (45) Finally, Section 7 lacks a content-based trigger on social media platform's speech unlike Miami Herald where the law required newspapers to publish a response if they ran a negative piece on a...
