Texas Attorney General Ken Paxton is once again attempting to misuse his state’s consumer protection law to regulate an online platform’s editorial choices — this time as part of an effort to prevent Yelp from providing its users with information about the services offered by crisis pregnancy centers.
Though the case doesn’t involve a news organization, it could have implications for press freedom, specifically the freedom of journalists and news outlets to make editorial decisions without fear of government regulation or retaliation.
The legal dispute concerns notices that Yelp appended to the pages for crisis pregnancy centers. The review website had received reports that the centers were trying to steer users seeking abortions away from abortion-care providers. Yelp’s notice stated that crisis pregnancy centers “typically provide limited medical services and may not have licensed medical professionals onsite,” language Yelp settled on after reviewing studies about the businesses and their services.
A coalition of two dozen state attorneys general, including Paxton, responded with a letter to Yelp complaining that the notice was “misleading” and criticized the company for not appending similar notices to pages for abortion clinics. In response, Yelp defended its notice, arguing that it was accurate. But to avoid litigation, the company revised the notice to say that crisis pregnancy centers “do not offer abortions or referrals to abortion providers.”
That revision appeared to appease all but one attorney general: Paxton. In September, the Texas attorney general sent a letter to Yelp stating that he intended to sue the company, claiming that Yelp’s two consumer notices violated the Texas Deceptive Trade Practices Act, a state consumer protection law.
The day after receiving the letter, Yelp sued Paxton, asking the U.S. District Court for the Northern District California for an injunction to prevent the attorney general from penalizing the company for its editorial decisions. Paxton countered with a lawsuit filed in Texas. That lawsuit asks the District Court of Bastrop County, Texas, to stop Yelp from, among other things, “[p]osting any further false and/or misleading disclaimers or representations regarding pregnancy resource centers.”
In a brief filed in support of its motion for a preliminary injunction, Yelp argued that “The First Amendment does not permit the government to punish inconvenient truth,” adding that “the public has a significant interest in the dissemination of truthful speech — about any matter of public concern — without fear of reprisal.”
We agree. The application of consumer protection laws in the context of editorial decisions — by any private speaker — is dangerous. And Texas has articulated no limiting principle that would preclude the application of the state’s consumer protection law against members of the press on a similar theory.
Consider, for instance, a restaurant reviewer who publishes a column critical of a restaurant, or a business reporter who investigates and reports on the poor environmental practices of a local company. Could the state target these journalists for writing critically of one business but not others?
Under the First Amendment, the answer is no. In Miami Herald Pub. Company v. Tornillo, the U.S. Supreme Court held that “governmental regulation” of “editorial control and judgment” cannot be “exercised consistent with First Amendment guarantees of a free press.” And government efforts to use deceptive practices laws, or other similar regulatory schemes, to investigate perceived “bias” by members of the news media would clearly violate that rule. In what seems like an attempt to address this constitutional concern, the Texas law exempts news organizations from liability for publishing advertisements that violate the law, so long as the publishers do so unwittingly. The law also exempts “providing of advice, judgment, opinion, or similar professional skill,” which may cover speech by journalists or even Yelp itself. But it’s not clear that either exception would limit the application of the law to news organizations under the legal theory advanced by Texas.
Our stance here is the same as it was the last time Paxton tried to invoke the Deceptive Trade Practices Act for a state investigation he launched into decisions by Google, Facebook, Twitter, and other companies to block then-President Donald Trump from accessing their platforms following the attack on the U.S. Capitol on Jan. 6, 2021. In that case, the Reporters Committee supported Twitter’s efforts to prevent the Texas attorney general from enforcing his demand for the company’s confidential documents as part of his investigation.
As we argued in the first of three friend-of-the-court briefs, the Deceptive Trade Practices Act “poses a significant risk of censorship if used to investigate or enforce the government’s conception of viewpoint neutrality online.”
Speaking more broadly, it’s always concerning when the government attempts to get into the business of regulating speech. The Supreme Court recently agreed to hear two important cases concerning government efforts to control how social media companies moderate their platforms. The justices’ decision to review the cases comes after two federal appeals courts split on social media censorship statutes passed in Texas and Florida. The Reporters Committee, joined by other media and First Amendment organizations, has so far filed five friend-of-the-court briefs arguing that both laws violate the First Amendment, in part because they would chill the exercise of editorial discretion.
And all of these laws and attempted regulatory interventions illustrate the danger here: that the state will use its authority in an effort to steer public discourse to its preferred course or, worse, to influence public discourse to improve its political fortunes. While it is of course true that consumer protections laws serve essential social interests, when used, as here, to regulate or suppress pure, non-commercial speech they can prove a powerful tool of censorship.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.