NetChoice Appreciates Filings From Over 30 Groups in Support of Our Emergency Application to the Supreme Court

Washington, D.C.—On Friday, May 13, NetChoice and CCIA filed an emergency application in the United States Supreme Court. Our application requests that the Court vacate the Fifth Circuit’s order allowing HB 20 to take immediate effect. If the application is granted, the status quo will return: Texas HB 20 will remain enjoined from enforcement and the case will proceed to the merits in the lower courts.

Despite the tight turnaround, over 30 groups filed amicus briefs in support of our application yesterday and today. We note them below. (Supreme Court docket here)

“Our lawsuit is about protecting the First Amendment, the open internet, and the users who rely on it—as shown by the over 30 groups that filed in support of our lawsuit in the Supreme Court,” said Chris Marchese, Counsel for NetChoice.

“We’re humbled and grateful to have received support from all corners—including venerable civil rights organizations like the NAACP and Anti-Defamation League,” Marchese continued.

“We knew there might be interest in our case, but the extensive support we’ve received has exceeded all expectations. The First Amendment and the open internet are fortunate to have so many resolute defenders in this case.” 

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Filer:
Chamber of Progress

Co-Filers:
Anti-Defamation League (ADL), Connected Commerce Council, Consumer Technology Association (CTA), Engine Advocacy, Family Online Safety Institute (FOSI), HONR Network, Information Technology & Innovation Foundation (ITIF), Interactive Advertising Bureau, IP Justice, LGBT Tech Institute, Multicultural Media, Telecom & Internet Council, National Association for the Advancement of Colored People (NAACP), National Hispanic Media Coalition, Our Vote Texas, Software & Information Industry Association, Stop Child Predators, TechNet, Texas State Conference of the NAACP, Washington Center for Technology Policy Inclusion

Summary:

• Content moderation is necessary for a functioning internet. Platforms and websites rely on content moderation and curation to create safe, productive, and enjoyable user experiences.
• HB 20, however, “decimates platforms’ efforts to effectively and usefully curate content,” “forces disgraceful and wasteful speech onto platform users,” “compels disclosure of monitoring methods to malicious actors,” and “render[s] content moderation functionally impossible.”
• For these reasons, should HB take immediate effect, “chaos will ensure online with disastrous and irreparable consequences.”

Notable Quotes:

• “HB20 will inevitably thrust upon platform users vast swaths of harmful and wasteful content, or little content at all.”
• “The harms that will result from this total overhaul of platforms’ communities-harms suffered by platforms, their users, and their advertisers cannot be meaningfully repaired if the applicants ultimately secure a favorable judgment.”
• “The equities thus strongly support retaining the content-moderation status quo while the courts adjudicate the legality of HB20’s ‘censorship’ ban.”

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Filer:
TechFreedom *please note this filing contains real examples of vile content that HB 20 protects from moderation*

Summary:

• “The 5th Circuit’s panel order is poised to unleash a torrent of awful content,” including (among other types) “material harmful to children,” “suicide and self-harm,” “animal cruelty,” “organized hate,” and “hateful speech.”
• “HB20 would require social media platforms to not only host but also promote hateful and harmful content to users of all ages, including children.”
• “The exceptions to HB20’s ban on content moderation are far too limited to save HB20 from being unconstitutional.”

Notable Quotes:

• “HB20 is a ‘must-carry’—even a ‘must-promote’—law for social media posts that glorify terrorism, celebrate the Third Reich, encourage teen anorexia or cutting, depict children in sexually suggestive poses and settings, depict cruelty to animals, use racial slurs, and much more.”
• “HB20 flips the First Amendment on its head.”
• “Under HB20, the platforms are more like hostages. The most extreme users may put the platforms to the choice—thousands of times a day, no less—of either taking a heinous piece of content down, in violation of Texas law, or leaving it up, in defiance of the platform’s own reputational and financial interests, in reckless disregard for the health and safety of the platform’s other users and—because HB20 encourages users to ride the thin gray line of legality—at the risk of violating federal criminal law if they make even a single error.”
• “Under HB20, these platforms face an untenable choice: they can, on the one hand, permit the unfettered publication of content depicting minors in sexually suggestive positions (including images that may have been taken or posted without the minors’ permission or knowledge); encouraging self-harm, such as mutilation or extreme dieting; depicting suicide; highlighting cruelty to animals; and hateful speech. Or they can continue to moderate content as they do today, consistent with what their users have come to expect—and expose themselves to the risk of liability should any Texas user sue while the constitutionality of HB20 is being litigated.”

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Filer:
Reporters Committee for Freedom of the Press

Co-Filers: 

American Booksellers for Free Expression, American Civil Liberties Union, American Civil Liberties Union of Texas, Authors Guild, Media Coalition Foundation, and Media Law Resource Center.

• “The stay order will have a chilling effect on publishers of all kinds who rely on the First Amendment’s protections for editorial autonomy.”
• “The State’s defense of HB 20 would allow Texas to impose its editorial judgment not only on the new forms of digital media it targets now, but also on traditional publishers and other speakers it may later disfavor.”
• “The stay order permits unprecedented inquiries into the editorial process that will likewise chill the free exercise of editorial judgment.”
• “The stay order blesses the State’s effort to single out a small set of publishers for unique burdens, a clear alarm bell for illicit retaliation.”

• “While Texas has chosen to target new digital platforms today, its defense of HB 20 offers no limiting principle that would prevent it from turning its attention to the most traditional of media tomorrow.”
• “The Fifth Circuit’s heedless departure from the First Amendment status quo (and precedent) will have an immediate chilling effect on publishers of all kinds.”

*  *  *

• “This Court should vacate the Fifth Circuit’s stay to protect the public interest and preserve the status quo.”
• “Relief is necessary to protect the public interest in beneficial use of the platforms.”
• “Relief is necessary to preserve the status quo and to prevent irreparable harm.”

• “HB20 aims to combat the purported ‘discriminatory dystopia’ of social media companies’ ‘censorship.’ But prohibiting companies from shielding users from animal crush videos and Ku Klux Klan advocacy material is likely not the free speech utopia many users want.”
• “What HB20 calls ‘viewpoint discrimination’ is necessary for platforms to serve a broad and diverse group of users for whom virulent racism, animal abuse, and terrorist recruitment material precludes enjoyable use.”
• “In Texas, platforms may now be sued for exercising their well-established First Amendment right to choose what content they host.”

• “The public interest and the interests of social media users favor maintaining the status quo and rejecting the stay.”
• “Applicants are likely to succeed on the merits because courts have without exception recognized online intermediaries’ First Amendment rights to curate the content they host.”
• “The First Amendment protects the right to speak by curating the speech of others.”

• “To sustain the duties Texas has imposed on social media platforms today risks exposing news organizations––as well as any other speakers Texas may later disfavor—to the same duties whenever the State next turns its attention to them.”

• “The Constitution protects the free speech rights of platforms.” Those
• “Section 230 does not require platforms to forfeit their free speech rights by becoming ‘mere conduits,’” and “platforms are not common carriers and do not accept ‘all comers.’’
• “HB 20 is inconsistent with Section 230 and therefore preempted under the Supremacy Clause.”
• “Granting applicants relief will satisfy the standards for ruling on a stay request, especially the ‘important consideration’ of maintaining the status quo.”

• “The First Amendment interests threatened by HB20 are paramount.”
• “There is nothing in §230 that requires abridging the free speech rights of platforms to exercise the editorial discretion inherent in content moderation.”
• “Because content moderation is a form of editorial speech, the First Amendment fully protects it well beyond the specific safeguards enumerated in §230. Properly understood, §230 complements the First Amendment and is entirely consistent with it. The claim that §230 requires platforms to operate as ‘mere conduits’ is patently false.”
• “Texas is not content to allow the marketplace of ideas to sort out these matters, as the First Amendment envisages. Instead, HB20 uses the heavy hand of the State to require platforms to ‘take all comers.’”

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• “HB 20’s mandatory editorial transparency requirements violate the First Amendment.”
• “HB 20’s editorial transparency requirements are not like disclosure requirements in other commercial contexts.”
• “HB 20’s disclosure requirements are impermissibly invasive.”

• “Texas enacted a ‘social media censorship’ law called HB 20, with the completely unprecedented requirement that online publishers make disclosures about their editorial operations and policies that no offline publishers have been required to make—or could be required to make.”
• “These [required] disclosures are qualitatively different from other types of constitutionally permissible commercial disclosure requirements because they will affect online publishers’ editorial decisions.”
• “These mandates also carry discovery implications that will further distort online publishers’ editorial decisions by entangling the government into every aspect of the publishers’ editorial operations. Such inevitable distortions of publishers’ editorial decisions and operations are intolerable under the First Amendment.”