Texas v. Tech Lords

Introduction

• I should reorganize to have pages on Section 230: The Platform Law and NetChoice v. Moody: Florida and Biden v. Knight: Thomas Dissent.

• Professor Goldman has a good link site that is mainly ad hominem attack on amici, but does have links to the pro-Texas amicus briefs.

Paxton v. Netchoice (Texas vs. BigTech)

• NetChoice's Netchoice v. Paxton link page.

Court Documents,District and Appellat Courts

• [https://www.courtlistener.com/docket/60413417/netchoice-llc-v-paxton/ NetChoice LLC et al v. Paxton, Judge Robert Pitman, Western District of Texas (Austin), CIVIL DOCKET FOR CASE #: 1:21-cv-00840.

• In the 5th Circuit it is 21-51178.

• Netchoice opinion in District Court

Court Documents, Supreme Court

• QUESTIONS PRESENTED

1. Whether Texas House Bill 20’s content-moderation restrictions comply with the First Amendment.
2. Whether Texas House Bill 20’s individualizedexplanation requirements comply with the First Amendment.

• "Response briefs on the merits on or before Tuesday, January 16, 2024, and those briefs shall bear a light red cover. Any brief of an amicus curiae in support shall be filed on or before Tuesday, January 23, 2024, and the briefs shall bear a dark green cover. Reply briefs shall be filed in compliance with Rule 25.3, and the briefs shall bear a yellow cover."

• The Joint Appendix, filed by both sides together, contains the relevant earlier court documents such as the Complaint.

• Scotusblog page, which has all the docket for the Supreme Court case, which also involves the Moody case from Florida because there is a circuit split.

• Paul Clement's NetChoice brief

• Pro-NetChoice amicus briefs of Professor Goldman and Professor Fukuyama and Professor Christopher Yoo and Geoffrey Manne (International Center for Law and Economics and FIRE

• Briefs "in support of neither party":Three No-Name Economists

Commentary

• Professor Eric Goldman of Santa Clara Law has a nice summary and links to key documents. See also the netchoice.org page.

• Goldman on Netchoice v. Paxton nov. 2021.

• Goldman on Texas statute, September 2021.

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The Texas Statute

The statute is here:

Sec. 143A.002.  CENSORSHIP PROHIBITED. (a)  A social media platform or interactive computer service may not 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 another person's expression; or
 	             (3)  a user's geographic location in this state or any part of this state.
 	       (b)  This section applies regardless of whether the
 	viewpoint is expressed on a social media platform or interactive
 	computer service or through any other medium.

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NetChoice v. Moody (Florida v. Tech Lords)

• From NetChoice v. Moody:

  In Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710, at *3–4 (N.Y. Sup. Ct. May 24, 1995), an anonymous user posted allegedly defamatory content on an electronic bulletin board—an earlier version of what today might be called social media. The court said that if the provider of such a bulletin board did not undertake to review posted content—much as a librarian does not undertake to review all the books in a library—the provider would not be deemed the publisher of a defamatory post, absent sufficient actual knowledge of the defamatory nature of the content at issue. On the facts of that case, though, the provider undertook to screen the posted content—to maintain a “family oriented” site. The court held this subjected the provider to liability as a publisher of the content. At least partly in response to that decision, which was deemed a threat to development of the internet, Congress enacted 47 U.S.C. § 230.

• NetChoice v. Moody says that a platform can remove *any* material it considers objectionable, for any reason, including, in particular, that the content provider is someone running for office, under Section 230. If read this way, it would rule out federal and state civil rights laws.

• NetChoice v. Moody: The plaintiffs say—correctly—that they use editorial judgment in making these decisions, much as more traditional media providers use editorial judgment when choosing what to put in or leave out of a publication or broadcast.

• NetChoice v. Moody:

  In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court rejected just such an argument, striking down a Florida statute requiring a newspaper to print a candidate’s reply to the newspaper’s unfavorable assertions.

• NetChoice v. Moody:

  Whatever might be said of the largest providers’ monopolistic conduct, the internet provides a greater opportunity for individuals to publish their views—and for candidates to communicate directly with voters—than existed before the internet arrived.

But can you get viewers? You get crowded out. It is like anyone being able to say anything they want, but being blocked from newspapers and prohibited from public spaces.

• NetChoice v. Moody:

  The third case on the plaintiffs’ side is Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986). There a public utility included in its billing envelopes its own viewpoint-laden newsletters. The state directed the utility to include in its billing envelopes four times per year a private watchdog organization’s newsletters setting out a viewpoint with which the utility disagreed. The Supreme Court held this unconstitutional.

• NetChoice v. Moody:

  Similarly, in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), a shopping center refused to allow individuals to solicit petition signatures from members of the public at the shopping center. The California Supreme Court held the individuals had the right, under state law, to engage in the proposed activity. The ruling did not compel the shopping center to say anything at all, and the ruling did not prohibit the center from saying anything it wished, when and how it wished. The United States Supreme Court said it was unlikely anyone would attribute the solicitation activities to the shopping center and, with no state action compelling the center to speak or restricting it from doing so, there was no violation of the First Amendment.

• NetChoice v. Moody:

  Moreover, these statements are consistent with the statutory definition of “social media platform,” which extends only to, and thus makes the legislation applicable only to, large entities—those with $100 million in revenues or 100 million monthly participants. As the Supreme Court has recognized, discrimination between speakers is often a tell for content discrimination....The state has suggested no other basis for imposing these restrictions only on the largest providers.

Antitrust enters here, and natural monopoly.