Over the last year, several states have taken an interest in regulating the way that large social media firms curate content on their platforms — first Florida, then Texas, with Georgia potentially next at bat. The statutes passed in Florida and Texas were quickly blocked in federal court for infringing on the First Amendment rights of covered tech companies. But as the Reporters Committee has worked to highlight, the push for government-enforced “fairness” in content moderation also threatens the freedoms of traditional news organizations. In a pair of friend-of-the court briefs filed this month, our attorneys explain why.
In each of the two cases — NetChoice v. Paxton and Twitter v. Paxton — Texas Attorney General Ken Paxton finds himself opposite tech industry plaintiffs challenging the state’s efforts to mandate its preferred theory of neutrality online. NetChoice deals with a Texas statute, HB 20, that prohibits large platforms from “censoring” any user on the basis of their viewpoint and requires detailed disclosures about the way covered sites curate content. As Texas Gov. Greg Abbott made express in signing the legislation, the bill was passed to respond to what Texas officials see as “a dangerous movement by social media companies to silence conservative viewpoints and ideas.”
Our brief to the U.S. Court of Appeals for the Fifth Circuit, filed on behalf of a coalition of First Amendment organizations, explains that HB 20 trips nearly every alarm in the Supreme Court’s press-freedom precedent. It overrides a private party’s judgment about what is and isn’t worth publishing, in violation of the Court’s landmark decision in Miami Herald Publishing Co. v. Tornillo. Its transparency provisions expose editorial judgments to government scrutiny with no clear justification — akin to requiring a newspaper to explain why it rejected a particular op-ed submission in the hopes of smoking out hidden bias. And it singles out just three companies for special burdens, the kind of regulatory structure that the Supreme Court warned in Minneapolis Star & Tribune v. Minnesota Commissioner of Revenue requires searching First Amendment review to ensure that the state isn’t targeting those it may perceive as its ideological opponents.
Needless to say, we hope the Fifth Circuit will take those objections to heart and keep the Texas statute from going into effect.
Twitter v. Paxton, for its part, challenges another prong of Texas’s effort to chill platform expression with which it disagrees. There, Twitter has asked the courts to block a civil investigative demand that Paxton served on the company, seeking to pry loose more information about how it makes content moderation decisions. As Twitter argued, the investigation is transparently retaliatory; Paxton said so himself, explaining that it was motivated in part by the platform’s “removing and blocking of President Donald Trump.” Remarkably, though, a panel of the U.S. Court of Appeals for the Ninth Circuit allowed the investigation to go forward on the theory that it’s too soon to tell whether Twitter is, as Paxton claims, biased in its moderation — and therefore potentially liable for deceptive trade practices for claiming otherwise.
We think that rationale is exceptionally dangerous, as our brief with the Media Law Resource Center explains, and we’re supporting Twitter’s request that the full court revisit it. Routinely, news organizations share their standards with the public to promote trust and articulate their vision for good journalism — expression that has obvious public value. But on the panel’s theory, any newsroom that expresses a commitment to objectivity opens its doors to state investigators hoping to check whether that commitment is bona fide. That rule would have an obvious chilling effect, and it isn’t consistent with the First Amendment.
We imagine these won’t be the last two briefs we file on the press rights issues at stake in content moderation regulation — and we’ll continue following these matters as they work their way through the courts.
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 Gillian Vernick.