NetChoice v. Paxton

Court: U.S. District Court for the Western District of Texas

Date Filed: Oct. 7, 2021

Background: In September 2021, Texas Gov. Greg Abbott signed into law H.B. 20, a statute that, were it to take effect in December, would place new restrictions on the content moderation practices of social media platforms in order to root out perceived bias by the platforms. Specifically, the new law prohibits social media platforms with more than 50 million active monthly users from moderating content based on “the viewpoint of the user” or “the viewpoint represented in the user’s expression.” The term “viewpoint” is undefined in the statute. The law permits Texas Attorney General Ken Paxton to sue the platforms to enforce these restrictions.

Shortly after Abbott signed the measure into law, NetChoice and the Computer and Communications Industry Association filed a federal lawsuit against the Texas governor seeking to enjoin and invalidate H.B. 20. The lawsuit argues, among other things, that the law violates the First Amendment by giving the government the power to force private businesses to host content they would otherwise remove or restrict.

Our Position: The First Amendment protects the exercise of editorial discretion on social media platforms. By mandating viewpoint neutrality — as defined by the government — Texas’s law improperly interferes with constitutionally protected editorial choices and decision-making of platforms.

• The challenged provisions of H.B. 20, if allowed to stand, would violate the rule articulated by the U.S. Supreme Court in Miami Herald Pub. Company v. Tornillo — that “governmental regulation” of “editorial control and judgment” cannot be “exercised consistent with First Amendment guarantees of a free press[.]”
• H.B. 20 would chill the exercise of editorial discretion, restricting the free flow of information to the public.
• If allowed to stand, H.B. 20’s mandate could erode editorial protections for other forms of media, including traditional news organizations.

The Reporters Committee, the American Civil Liberties Union, the American Civil Liberties Union of Texas, Center for Democracy & Technology, and Media Law Resource Center were represented in this brief by attorneys from Haynes and Boone, LLP.

Quote: “If allowed to take effect, H.B. 20 would compel private communications platforms to host speech by others that they would otherwise not carry, and it would allow the state to regulate how private communications platforms curate that speech.”

Related: The Reporters Committee has also filed friend-of-the-court briefs in NetChoice v. Moody, a challenge to a Florida law that prohibits social media companies from “willfully deplatforming” Floridian political candidates by suspending or barring them.

Updates: On Dec. 1, 2021, a federal judge blocked H.B. 20 from taking effect, holding that the First Amendment protects the social media platforms’ editorial independence. On appeal, the Reporters Committee filed a friend-of-the-court brief on April 8, 2022, urging the U.S. Court of Appeals for the Fifth Circuit to affirm the district court’s decision blocking enforcement of the law. On May 11, 2022, the Fifth Circuit issued a one-sentence order allowing Texas’s law to go into effect — a ruling that could have reshaped online speech nationwide. After the social media platforms filed an emergency application with the U.S. Supreme Court, the Reporters Committee, joined by a coalition of six organizations, filed a friend-of-the-court brief on May 17, 2022, urging the Court to block the social media censorship law. On May 31, 2022, the Supreme Court granted the platforms’ application, putting the law on hold while the legal battle continues in the lower courts. On Sept. 16, 2022, the Fifth Circuit upheld in full Texas’s social media content moderation law.

NetChoice and the Computer and Communications Industry Association petitioned the U.S. Supreme Court to hear the case, and in September 2023, the justices agreed to review both NetChoice v. Paxton and NetChoice v. Moody, the business groups’ challenge to a similar law in Florida that prohibits social media companies from “willfully deplatforming” Floridian political candidates by suspending or barring them, among other restrictions on content moderation. On Dec. 5, 2023, the Reporters Committee — joined by a coalition of civil liberties groups and organizations that defend constitutional protections for booksellers, film studios, video game publishers, and more — filed a friend-of-the-court brief urging the Supreme Court to reject the Texas and Florida laws as unconstitutional. The brief argues, among other things, that the First Amendment forbids both direct interference with a private speaker’s exercise of editorial judgment and disclosure mandates that target the exercise of editorial judgment.

On July 1, 2024, the U.S. Supreme Court vacated the Fifth Circuit’s decision in this case and the Eleventh Circuit’s decision in NetChoice v. Moody, sending both cases back to the lower courts for reconsideration. In its decision, the Court makes clear that social media platforms are protected by the First Amendment when they exercise editorial discretion and reaffirmed that “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.”

U.S. Supreme Court brief (Dec. 5, 2023)

U.S. Supreme Court brief (May 17, 2022):

Fifth Circuit brief:

District Court brief: