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Posted 03/23/2022  |  Testimony

Georgia SB 393 Threatens Social Media Upstarts and Violates The First Amendment

Chris Marchese
Litigation Center Director

GA SB 393 Opposition Testimony

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Christopher Marchese, Counsel

1401 K St NW, Ste 502

Washington, DC 20005

netchoice.org

Georgia SB 393: Opposition Testimony

SB 393 Threatens Conservative Social Media Upstarts & Violates the First Amendment. 

Rep. Chuck Efstration, Chair

Judiciary Committee

Georgia General Assembly

March 23, 2022

Dear Chair Chuck Efstration & Members of the Committee:

We respectfully ask you to not advance SB 393 because it:

  • Violates the First Amendment; and
  • Undermines competition in the marketplace and disadvantages new start up social media businesses like President Trump’s TRUTH Social platform.

1. Violates the First Amendment of the U.S. Constitution.

 

Before jumping into SB 393’s specific constitutional problems, it’s worth briefly surveying First Amendment case law applicable to social media businesses. As the cases below make clear, social media businesses may be of recent vintage, but the First Amendment’s expansive protections against government apply to them nevertheless. And because SB 393 is a carbon copy of Texas’s unconstitutional HB 20, we can see side by side why SB 393 is also unconstitutional.

From the federal court granting a preliminary injunction in NetChoice v. Paxton (pp. 12-17):

More than twenty years ago, the Supreme Court recognized that “content on the Internet is as diverse as human thought,” allowing almost any person to “become a town crier with a voice that resonates farther than it could from any soapbox.” Reno v. Am. C.L. Union, 521 U.S. 844, 870 (1997). The Reno Court concluded that its “cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.” Id. Disseminating information is “speech within the meaning of the First Amendment.” Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011) (“[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct.”)).

Social media platforms have a First Amendment right to moderate content disseminated on their platforms. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1932 (2019).

The Supreme Court’s holdings in Tornillo, Hurley, and PG&E, stand for the general proposition that private companies that use editorial judgment to choose whether to publish content—and, if they do publish content, use editorial judgment to choose what they want to publish—cannot be compelled by the government to publish other content.

With those legal principles in mind, we can turn next to SB 393’s specific constitutional problems. As mentioned, SB 393 is nearly an exact replica of Texas HB 20, which a federal court recently enjoined from enforcement because it is likely unconstitutional. The chart below provides a side-by-side comparison of HB 20’s and SB 393’s provisions and explains why they are unconstitutional, in the order they appear in the bill.

Reason 1: SB 393 Arbitrarily Targets Politically Disfavored Platforms for Special Burdens

Texas: HB 20 Georgia: SB 393
“The State defines social media platforms as any website or app (1) with more than 50 million active users in the United States in a calendar month, (2) that is open to the public, (3) allows users to create an account, and (4) enables users to communicate with each other “for the primary purpose of posting information, comments, messages, or images.”

“HB 20 excludes certain companies like Internet service providers, email providers, and sites and apps that “consist[] primarily of news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider” and user comments are “incidental to” the content.”

 “This chapter shall apply only to: […] (2) A common carrier that: (A) Is open to the public or offers its services to the public; and (B) Functionally has more than 20 million active users in the United States in a calendar month; and (3) An expression that is shared or received in this state.”

‘Social media platform’ means 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. Such term does not include an: (A) Internet service provider or provider of broadband services; or (B) Online service, application, or website: (i) That consists primarily of news, sports, entertainment, cultural, or artistic features; community information; or other features, information, or content that is not generated but rather is preselected by the provider; and (ii) For which any chat, comments, or interactive functionality is incidental to, directly related to, or dependent on the provision of the content described in division (i) of this subparagraph.”
Sparknotes: While it’s common for legislatures to draw distinctions between businesses based on their size (e.g., exempting small businesses from onerous labor regulations), it’s far more questionable when legislation is seemingly written to burden a particular subset of businesses in one particular industry.

Here, SB 393’s threshold is lower than Texas’s, but it still exempts many “conservative” (reputationally) platforms like Parler (which has over 20 million users but only 1 million active users).

Yesterday, I testified that this bill doesn’t have a “Disney Exemption.” I was wrong, it has an even worse one: an exemption for actual common carriers! The bill is also discriminatory because it exempts ISPs. This is curious. The bill’s entire premise is that Big Tech platforms are “common carriers” and thus have an obligation to host and transmit speech on a nondiscriminatory basis. Yet at the same time the bill recognizes that these platforms aren’t actually mere conduits of speech as the DC Circuit Court of Appeals and the FCC declared ISPs to be. Indeed, ISPs share far more in common with traditional common carriers like the telephone companies than do social media businesses.

[To be clear, NetChoice is committed to free-market principles and doesn’t endorse common carriage regulations as a general matter. But since it’s the judiciary’s opinion that matters, it’s worth noting the unusual nature of a common carriage bill that exempts actual common carriers who have, at least depending on whose nominees control the FCC, nondiscrimination obligations.]

This seems uncomfortably similar to the “Disney Exemption” in the Florida case.
Legal Reasons: “HB 20 applies only to social media platforms of a certain size: platforms with 50 million monthly active users in the United States. HB 20 excludes social media platforms such as Parler and sports and news websites. During the regular legislative session, a state senator unsuccessfully proposed lowering the threshold to 25 million monthly users in an effort to include sites like “Parler and Gab, which are popular among conservatives.”

““[D]iscrimination between speakers is often a tell for content discrimination.” NetChoice, 2021 WL 2690876, at *10. The discrimination between speakers has special significance in the context of media because “[r]egulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 659 (1994). The record in this case confirms that the Legislature intended to target large social media platforms perceived as being biased against conservative views and the State’s disagreement with the social media platforms’ editorial discretion over their platforms. The evidence thus suggests that the State discriminated between social media platforms (or speakers) for reasons that do not stand up to scrutiny.”

[N.B. the court in Florida reached the same conclusion based on that state’s law.]

Reason 2: SB 393’s Premised Entirely on Social Media Businesses Being “Common Carriers”—But They’re Not & Can’t Be Declared So At Will

Texas: HB 20 Georgia: SB 393
“Social media platforms and interactive computer services with the largest number of users are common carriers by virtue of their market dominance.” “Social media platforms with the largest number of users are common carriers by virtue of their market dominance.”
Sparknotes: The doctrine of “common carriage” comes from the British common law and boils down to this: when transportation or distribution companies hold themselves out to the public as operating on a nondiscriminatory basis, it’s proper to hold them to that promise. Put another way, businesses that promise to move people or things from Point A to Point B on a nondiscriminatory basis (meaning, it doesn’t matter who the person is or what the thing is), they should be held to that. This is especially true when scarce resources are at stake—we don’t necessarily want 13 railroads crisscrossing a state so it makes sense to require the few that do operate to do so in a nondiscriminatory manner.

Tempting though it may be to see Big Tech that way, it just can’t work. First, tech businesses have never held themselves out as carrying all speech without question. Indeed, from the beginning these businesses have had content-moderation policies. And all of them had user requirements from the start. For example, Facebook has always required users to be 13 or older. That is “discrimination” that makes Facebook more like a media company (e.g., Fox News doesn’t have to host Rachel Maddow if it doesn’t want to) than it does a railroad.

Second, legislatures can’t simply declare businesses “common carriers.” If they could, New York would’ve declared the Big Banks (headquartered in NYC) common carriers and forced them to issue loans to low-income New Yorkers on equal terms to high-income New Yorkers. Instead, lawmakers may enforce promises that private businesses themselves make or agree to. But since no tech platform has ever agreed to that (and that also applies to platforms like Parler, which has some content policies), it can’t save this bill.

Third, even if they were common carriers, they still have First Amendment rights and this bill would still be unconstitutional.

Fourth, to reiterate: they’re not common carriers because, as the bill itself recognizes, platforms engage in “curation,” “moderation,” and what it deems as “censorship.” Not to mention all the other acts the bill wants platforms to disclose: their moderation policies (already disclosed publicly but worth noting that moderation policies is evidence of editorial discretion—a First Amendment right), how much content they remove (again, common carriers wouldn’t be removing content), etc.

[N.B. Note too that SB 393 is nearly identical to Texas’s provision, except it exempts ISPs whereas Texas includes them.]
Legal Reasons: “The parties dispute whether social media platforms are more akin to newspapers that engage in substantial editorial discretion—and therefore are entitled to a higher level of protection for their speech—or a common carrier that acts as a passive conduit for content posted by users—and therefore are entitled to a lower level of protection, if any. […] This Court is convinced that social media platforms, or at least those covered by HB 20, curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content.

Indeed, the text of HB 20 itself points to social media platforms doing more than transmitting communication. In Section 2, HB 20 recognizes that social media platforms “(1) curate[] and target[] content to users, (2) place[] and promote[] content, services, and products, including its own content, services, and products, (3) moderate[] content, and (4) use[] search, ranking, or other algorithms or procedures that determine results on the platform.”

“HB 20’s pronouncement that social media platforms are common carriers does not impact this Court’s legal analysis.”

“[T]his Court has found that the covered social media platforms are not common carriers. Even if they were, the State provides no convincing support for recognizing a governmental interest in the free and unobstructed use of common carriers’ information conduits.”

Reason 3: SB 393 Discriminates on the Basis of Content and Viewpoint and Can’t Survive “Strict Scrutiny”

Texas: HB 20 Georgia: SB 393
HB 20 prohibits large social media platforms from “censor[ing]” a user based on the user’s “viewpoint.” Specifically, Section 7 makes it unlawful for a “social media platform” to “censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:

●      (1) the viewpoint of the user or another person;

●      (2) the viewpoint represented in the user’s expression; or

●      (3) a user’s geographic location in this state or any part of this state.”

 “A common carrier shall not censor or discriminate against a user, a user’s expression, or a user’s ability to receive the expression of another person based on:

●      (1) The viewpoint of the user or another person;

●      (2) The viewpoint represented in the user’s expression or another person’s expression;

●      (3) A user’s geographic location in this state or any part of this state; or

●      (4) The actual or perceived race, color, ethnicity, religion, religious beliefs, political beliefs, political affiliation, national origin, sex, gender, sexual orientation, or disability of a user or another person or of a class of users or a class of other persons.”
Sparknotes: When laws are based on the content or viewpoint of private speech, they must pass “strict scrutiny”—the highest standard of judicial review and one the government flunks roughly always. Content-based laws are those that draw distinctions between types of content (e.g., SB’s 393’s protection of the categories listed in (4) above but lack of inclusion for other similarly situated groups like military vets; SB 393’s exception for content that unlawfully incites violence but lack of an exception for racist speech). And viewpoint-based laws are those that treat different views on content differently. Think of it this way: If the School Board held a public meeting on masking in schools, it would need to treat all viewpoints equally—if pro-maskers get to testify, then so too must anti-maskers.

Before boring you with the legal technicalities, I’ll just point out the obvious: SB 393 explicitly uses the term “viewpoint” and explicitly spells out certain categories of speech that must get extra protection. That won’t fly in court.
Legal Reasons: “HB 20’s prohibitions on “censorship” and constraints on how social media platforms disseminate content violate the First Amendment. The platforms have policies against content that express a viewpoint and disallowing them from applying their policies requires platforms to “alter the expressive content of their [message].” Hurley, 515 U.S. at 572–73. HB 20’s restrictions on actions that “de-boost” and “deny equal access or visibility to or otherwise discriminate against expression” impede platforms’ ability to place “post[s] in the proper feeds.” Social media platforms “must determine how and where users see those different viewpoints, and some posts will necessarily have places of prominence.”

HB 20 compels social media platforms to significantly alter and distort their products. Moreover, “the targets of the statutes at issue are the editorial judgments themselves” and the “announced purpose of balancing the discussion—reining in the ideology of the large social-media providers—is precisely the kind of state action held unconstitutional in Tornillo, Hurley, and PG&E.” Id. HB 20 also impermissibly burdens social media platforms’ own speech. Id. at *9 (“[T]he statutes compel the platforms to change their own speech in other respects, including, for example, by dictating how the platforms may arrange speech on their sites.”).

Reason 4: SB 393 Triggers the Judicially Created Strict Scrutiny Test—And Flunks It

Texas: HB 20 Georgia: SB 393
“this state has a fundamental interest in protecting the free exchange of ideas and information in this state” “The state has a fundamental interest in protecting the free exchange of ideas and information in this state to ensure a vibrant and inclusive political discourse”
Sparknotes: As alluded to earlier, SB 393 triggers strict scrutiny because it’s content- and viewpoint-based. [And if the court were to find that the law was motivated in part to target certain businesses because of their perceived liberal biases, then it’ll also be deemed speaker-based.] Strict Scrutiny requires the government to prove its law is (1) narrowly tailored to achieve (2) a compelling government interest. [N.B. While narrowly tailored is a demanding requirement in itself, the Supreme Court seems to now require the “least restrictive means,” which almost guarantees the government will lose. In all honesty, it’s just semantics: if there is a means less restrictive than the government’s law, then it’s inherently not narrowly tailored.]

Here, SB 393 justifies itself on the grounds that the state has a “fundamental interest” in (1) protecting free speech and (2) promoting a vibrant, politically diverse marketplaces of ideas. While I personally agree that governments should do both of those things, the way to stop violations of the First Amendment is to stop violating the First Amendment.
Legal Reasons: “The State offers two interests served by HB 20: (1) the “free and unobstructed use of public forums and of the information conduits provided by common carriers” and (2) “providing individual citizens effective protection against discriminatory practices, including discriminatory practices by common carriers.” The State’s first interest fails on several accounts.

First, social media platforms are privately owned platforms, not public forums. Second, this Court has found that the covered social media platforms are not common carriers. Even if they were, the State provides no convincing support for recognizing a governmental interest in the free and unobstructed use of common carriers’ information conduits.5 Third, the Supreme Court rejected an identical government interest in Tornillo. In Tornillo, Florida argued that “government has an obligation to ensure that a wide variety of views reach the public.” Tornillo, 418 U.S. at 247–48.

After detailing the “problems related to government-enforced access,” the Court held that the state could not commandeer private companies to facilitate that access, even in the name of reducing the “abuses of bias and manipulative reportage [that] are . . . said to be the result of the vast accumulations of unreviewable power in the modern media empires.” Id. at 250, 254.

The State’s second interest—preventing “discrimination” by social media platforms—has been rejected by the Supreme Court. Even given a state’s general interest in anti-discrimination laws, “forbidding acts of discrimination” is “a decidedly fatal objective” for the First Amendment’s “free speech commands.” Hurley, 515 U.S. at 578–79.

Even if the State’s purported interests were compelling and significant, HB 20 is not narrowly tailored. Sections 2 and 7 contain broad provisions with far-reaching, serious consequences. When reviewing the similar statute passed in Florida, the Northern District of Florida found that that statute was not narrowly tailored “like prior First Amendment restrictions.” NetChoice, 2021 WL 2690876, at *11 (citing Reno, 521 U.S. at 882; Sable Comm’n of Cal., Inc. v. FCC, 492 U.S. 115, 131 (1989)). Rather, the court colorfully described it as “an instance of burning the house to roast a pig.” Id. This Court could not do better in describing HB 20.”

“The Florida court concluded that: 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.”

From Florida:  “First, leveling the playing field—promoting speech on one side of an issue or restricting speech on the other—is not a legitimate state interest. See, e.g., Arizona Free Enter. Club v. Bennett, 564 U.S. 721, 749-50 (2011).”

Reasons 5 ad infinitum: SB 393 Violates the Constitution in Many More Ways…

Since each of the reasons given above is sufficient to invalidate SB 393 on its own, I’ll spare you detailed breakdowns on the additional reasons, which can be found in the Florida and Texas decisions. Here’s a list of further problems:

  • The transparency requirements fail strict scrutiny because they are unnecessarily burdensome and designed to chill constitutionally protected speech. Indeed, the disclosure requirements go so far as to require the sharing of trade secrets and competitively sensitive information with the entire world.
  • Some provisions are unconstitutionally vague or lacking due process—for example, phrases that require subjective judgment like “other perceivable communication,” “readily apparent,” “sufficient to enable users to make informed choices,” and most dooming of all: the definition of “censor.” Because social media “is not a snapshot in time like a hard copy newspaper,” it is impossible for platforms to comply with the law’s requirements.

SB 393 would penalize social media platforms for removing harmful content

Even if SB 393 were to survive the constitutional challenges described above, consider some of the unintended consequences of penalizing social media platforms for removing harmful content.

The First Amendment protects a lot of content that we don’t want our families to see on every-day websites. That includes explicit material like pornography, extremist recruitment, medical misinformation, foreign propaganda, and even bullying and other forms of verbal abuse.

Audiences and advertisers also don’t want to see this content on our social media pages. Today, online platforms make efforts to remove harmful content from their sites. In just six months, Facebook, Google, and Twitter took action on over 5 billion accounts and posts.[9] This includes removal of 57 million instances of pornography, and 17 million pieces of content related to child safety.

Yet the removal of content related to extremism and child safety is impeded by SB 393. This is because it penalizes a platform that decides to remove content because of “The viewpoint represented in the user’s expression or another person’s expression.” While this may seem obvious, for anyone whose content is removed based on the substance of the content, it is a removal based on the “viewpoint” of the user.

This means a social media platform could be violating SB 393 if it removed these types of user content:

  • ISIS propaganda – since that denies political speech of those who hate America
  • Dangerous Content for Children – restricting user-posted videos with violent, hateful, or racist content as inappropriate for children.

SB 393 would make it extremely risky for social media platforms to remove or restrict sharing of objectionable content that they moderate today. The threat of lawsuits authorized under this legislation would likely cause large platforms to stop deleting extremist speech, foreign propaganda, conspiracy theories, and other forms of harmful content, making the internet a much more objectionable place to be. For example, SB 393:

  • Prevents YouTube from restricting user-posted videos with violent, hateful, or racist content that is inappropriate for children — even in homes where parents activate Restricted Mode specifically to protect their children.
  • Authorizes spreaders of medical disinformation to sue social media platforms for censoring their “viewpoint” about cures or dangers of vaccinations.
  • Allows people who post anti-Semitic hate speech to sue social media platforms to have that content restored.
  • Enables Al Jazeera and RussiaToday to sue social media platforms for restricting posts celebrating terrorist acts or spreading foreign propaganda.

Not only would SB 393 push social media platforms to do less moderation of harmful content, but it would also force them to rehost this content if the challenger is successful in court, regardless of how harmful or offensive the content may be.

SB 393 would make it legally risky for social media services to block SPAM messages

Today, social media platforms engage in robust content blocking of SPAM messages.  But this blocking of not only unwanted but invasive content would be greatly impeded by SB 393, since blocking could be challenged by lawsuits authorized under the bill.[10]

SB 393 would enable bad actors to circumvent protections and contradict Congress’s intent to “remove disincentives for the development and utilization of blocking and filtering technologies.”[11]

SB 393 violates conservative values of limited government and free markets

In 1987, President Ronald Reagan repealed an earlier incarnation of this bill, the infamous “Fairness Doctrine,” which required equal treatment of political views by broadcasters, saying:[12]

“This type of content-based regulation by the federal government is …

 antagonistic to the freedom of expression guaranteed by the First Amendment.

In any other medium besides broadcasting, such federal policing … would be unthinkable.”

We face similarly unthinkable restrictions in SB 393, which punishes platforms for moderating their services in ways that they see fit for their customer base and advertisers.

Today, conservative speech has never been stronger. No longer limited to a handful of newspapers or networks, conservative messages can now reach billions of people across multiple social media platforms, including Facebook, Twitter, YouTube, Gab, Parler, Rumble, MeWe, and a new social media service announced by former president Trump.

We’ve seen the rise of conservative voices without having to beg for an op-ed in the Washington Post or New York Times, or a speaking slot on CNN.  Social networks allow conservative voices to easily find conservative viewers.

Nonetheless, some want government to regulate social networks’ efforts to remove objectionable content.  This returns us to the “fairness doctrine” and creates a new burden on conservative speech.

SB 393 also violates the American Legislative Exchange Council (ALEC) Resolution Protecting Online Platforms and Services:

WHEREAS, online platforms are businesses that should be allowed to operate in ways that best serve their users — and the government should not interfere with these businesses in order to advance a particular belief or policy;

WHEREAS, even if online platforms were to exhibit political bias in content display or moderation, the First Amendment protects this exercise of editorial discretion from government intervention;  …

THEREFORE LET IT BE FURTHER RESOLVED, ALEC finds that it is well settled that the First Amendment restricts the government from regulating speech or restricting the publishing rights of online platforms or services, including the right to curate content.

NetChoice supports limited government, free markets, and adherence to the United States Constitution, so we respectfully ask that you not support SB 393.

If supporters of SB 393 are so keen to create an “online public square” where Georgians could share any news and views that are protected by the First Amendment, there is a simpler way: have the state government stand-up a social media site—PublicSquare.Georgia.gov—where the first amendment prohibits government from imposing any restrictions on what people say.

2. SB 393 Undercuts Competition & Disadvantages Newcomers like TRUTH Social

As Republican former Senator and presidential candidate Rick Santorum points out recently in Newsmax, laws like HB 20 and bills SB 393 are the wrong response to online speech concerns:

“Gone are the days when a handful of newspapers or networks denied access to conservatives of the only broad based media available, conservative messages now reach billions of people across multiple social media platforms.

In fact, conservatives dominate the top ranks of Facebook, Twitter, and YouTube. As of this writing, Breitbart, Ben Shapiro, Steven Crowder and Franklin Graham are among the top performing link posts on Facebook.  Even though these platforms make content moderation decisions that anger many conservatives, social media remains the most effective tool conservatives have ever had.

Conservative social media platforms are also growing increasingly fast, with big increases at Parler, Gettr, and Rumble.  Donald Trump’s TRUTH Social announced it will launch in the first quarter of this year, and is gearing-up to handle 70 million subscribers—about the same number of Americans who voted for President Trump in 2020.

TRUTH Social is teaming up with the new, conservative infrastructure provider RightForge, where there’s no danger of being shut-down by vendors who bend to pressure from woke media and customers.

TRUTH Social aims to host family-friendly content, as explained by CEO Devin Nunes on Fox News:

“This is a quality, user-friendly product.  We want this to be something that you’re not worried about your kids or your grandparents being on.”

But there is a growing threat that TRUTH Social and other conservative-leaning platforms could be ravaged by lawsuits from the left. New laws like those enacted last year in Florida and Texas would authorize lawsuits by users whose posts were restricted because of the “viewpoint” expressed, such as if the left shared false and negative news and views about Donald Trump and his supporters.

These new laws would also make it difficult to take down content that violates a platform’s community standards, including the use of protected speech such as profanity, disinformation, hateful statements, and nudity, making it hard for TRUTH Social to deliver on Mr. Nunes’ promise.

Under this bill, for example, haters of Donald Trump could generate millions of lawful but awful posts that make TRUTH Social a terrible experience for intended users and for advertisers. But if TRUTH Social restricts or removes those inappropriate posts, progressive billionaires like George Soros and Tom Steyer can bankroll a bevy of lawsuits that are specifically authorized by these new laws.

While many conservatives are angry over how Donald Trump and some high-profile conservatives are treated on Facebook, Twitter, and YouTube, legislation like we’ve seen in Florida and Texas are exactly the wrong response. Those laws would be turned into weapons that progressives use against President Trump and his followers on new, conservative social media platforms.” 

*          *          *

For these reasons, NetChoice respectfully asks that you vote against SB 393.

Sincerely,

Chris Marchese

Counsel

 

NetChoice is a trade association that works to make the internet safe for free enterprise and free expression.

Endnotes

[1] See, Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018); Pacific Gas & Elec. v. PUC, 475 U.S 1, 15-16 (1986).

[2] Id.

[3] NetChoice & CCIA v. Moody, Case No. 4:21-cv-00220 (N.D.F.L. June 30, 2021), and

NetChoice & CCIA v. Paxton, Case No. 1:21-cv-00840 (W.D.Tex. December 1, 2021) .

[4] Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 US 47 (2006).

[5] PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980).

[6] Prager Univ. v. Google LLC, 951 F.3d 991 (9th Cir. 2020).

[7] See PG&E v. Public Utilities Comm’n, 475 U.S. 1 (1986) (recognizing that the public utility, PG&E is entitled to First Amendment protections and emphasizing that viewpoint based content requirements are subject to strict scrutiny, “The order does not simply award access to the public at large; rather, it discriminates on the basis of the viewpoints of the selected speakers.”).

[8] Id.

[9] See Transparency Report, at http://netchoice.org/wp-content/uploads/Transparency-Report.pdf

[10] See, e.g., Holomaxx Technologies Corp. v. Microsoft, 783 F. Supp. 2d 1097 (N.D. Cal. 2011) (email marketer sued Microsoft, claiming the SPAM blocking filtering technology Microsoft employed was tortious).

[11] Id. at 1105 (citing 47 U.S.C. § 230(b)(4)).

[12] Veto of Fairness in Broadcasting Act of 1987, 133 Cong. Rec. 16989 (June 23, 1987), http://www.presidency.ucsb.edu/ws/?pid=34456 .