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Texas attorney general’s Twitter investigation threatens First Amendment guarantees, RCFP argues

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  1. First Amendment
Investigations like the attorney general’s may undermine First Amendment protections established by the Supreme Court.

In January, Texas Attorney General Ken Paxton issued civil investigative demands (CIDs) to Twitter and other internet platforms requesting information about their content moderation practices pursuant to the office’s authority under the state Deceptive Trade Practices-Consumer Protection Act. Twitter has since sued the attorney general to block enforcement of the CID issued to it. The Reporters Committee authored a friend-of-the-court brief in support of Twitter last week, joined by the Center for Democracy and Technology, the Electronic Frontier Foundation, the Media Law Resource Center, and PEN America.

Paxton has been vocal about Twitter’s suspension of former President Trump’s account. A day after Twitter did so, Paxton tweeted he would “fight” the company “with all I’ve got.” In a press release about the CIDs, Paxton explicitly linked the demands to the “discriminatory” and “unprecedented step of removing and blocking President Donald Trump from online media platforms.”

The CID issued to Twitter requests copies of terms of service, content moderation policies, all public statements made about content moderation and internal communications with or about the site Parler.

Twitter argues that the attorney general’s actions are retaliatory and chill its content moderation practices, which are First Amendment-protected speech. The friend-of-the-court brief submitted by the Reporters Committee notes that government efforts to use regulatory schemes to investigate perceived bias in moderation practices would contravene the U.S. Supreme Court’s rule in Miami Herald Publishing Company v. Tornillo — that “governmental regulation” of “editorial control and judgment” cannot be “exercised consistent with First Amendment guarantees of a free press[.]”

Tornillo dealt with print media, but the Supreme Court has extended such protections to the internet as a communications medium. Much of public discourse today happens online, and public discourse needs “breathing space” for free debate to survive. Government interventions — even in the name of viewpoint neutrality — threaten to shape this debate in ways that suppress disfavored speech, the brief argues. Consequently, investigations like the attorney general’s may undermine the protections established by the Supreme Court in Tornillo.

The brief notes that even non-retaliatory regulatory actions can burden the free flow of information to the public, such as taxes on paper and ink used to produce newspapers. When such regulatory schemes are used to make government actors arbiters of bias, that risk becomes even more pronounced. Paraphrasing the Supreme Court’s words in Tornillo, responsible moderation may be a desirable goal, but it cannot be achieved through government mandate.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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