IP Justice Files Amicus Brief Against Texas’ Social Media Censorship Law in NetChoice, CCIA v. Paxton

By Alyssa Aguilar

On 7 April 2022, IP Justice filed an Amicus Curiae legal brief in the 5th Circuit Court of Appeals in support of Plaintiff-Appellee’s, NetChoice, and the Computer and Communications Industry Association (CCIA).  In the case of NetChoice, CCIA v. Paxton, IP Justice asked the appellate court to uphold a lower court’s injunction against the enforcement of Texas law HB 20.  The Texas law at issue regulates social media companies and imposes broad censorship rules on political speech on the Internet. 

The Texas case comes shortly after Florida passed similar legislation, SB 7072, which has similarly been halted by a district court in Florida and is to be heard by the 11th Circuit shortly. NetChoice and CCIA are the named Plaintiffs-Appellee’s in that case as well, opposing enforcement by Florida Attorney General, Ashley Moody.  IP Justice also filed an amicus brief in the 5th Circuit appeal on 15 November 2021 to raise concerns for Internet freedom and innovation policy in the Florida case.

Texas’ HB 20 is a bill that attempts to regulate Texas’ definition of social media companies, by asking that these companies not moderate by viewpoint. HB 20 has been referred to as a “social media censorship” law by numerous Internet freedom organizations and legal scholars. Texas has taken this to mean that social media companies are censoring by posting content that social media companies moderate and sometimes take down. How IP Justice and many other organizations view that framing is that the government, the state of Texas, is telling private companies how they are allowed to handle their content moderation practices and controlling political expression. The bill also contains disclosure provisions that require these companies to publicly disclose their moderation practices and decisions twice a year. 

IP Justice’s brief discussed how HB 20 violates the First Amendment’s freedom of speech rights, and creates harmful economic impacts on companies, consumers, employees, and independent contractors.  The “friend of the court” brief also explained how the Texas law will create damaging international implications if enforced. We discuss how the First Amendment provides for editorial discretion that applies to social media companies the same way it does with newspapers. Despite Texas’ attempted characterization, social media websites are not common carriers and should not be treated as such. The disclosure requirements are unduly burdensome and we don’t see how any company would be able to comply on a practical level. 

Further, liability for user-generated content would drown companies in endless litigation and force them to allow very limited speech to avoid liability. The costs of compliance with HB 20 would be a significant, if not complete, barrier to entry for start-up companies and would be discouragingly unbearable for current websites that meet the 50 million monthly active United States user threshold. Additionally, investments in new companies and startups will dwindle as investors fear their funding will not go towards innovation and progress, but towards endless litigation and onerous compliance costs instead. This doesn’t only affect the company and Internet users, it also negatively affects employees and independent contractors. Lastly, the harmful impacts of HB 20 will be felt in Texas, the United States, and internationally. The damage to global speech and innovation can’t be ignored, especially at a time where international information sharing is critical.    

Whichever party loses, will likely appeal to the U.S. Supreme Court. Depending on what happens in the Florida case, there is potential for there to be a circuit split on this issue, making it even more ripe for review. However, a loss for both Texas and Florida could set precedents for other states not to pass similar bills, as they too will likely be struck down by the courts based on the First Amendment. Whatever happens, these cases will set important precedents for the state’s ability to regulate Internet speech and social media companies.

IP Justice’s amicus brief was authored by Robin Gross, IP Justice’s Executive Director, and law students Alyssa Aguilar and Angel Jingwei Li, as part of IP Justice’s Cyberlaw and Policy Clinic.  

IP Justice would also love to thank the following for their amici briefs in support of the Plaintiff-Appellee’s, NetChoice and CCIA:

The Cato Institute

Chamber of Progress; Connected Commerce Council; CTA; Engine Advocacy; Information Technology & Innovation Foundation; National Black Justice Coalition; Progressive Policy Institute; TechNet; Washington Center for Technology Policy; Hispanic Technology and Telecommunications Partnership

Chris Cox, Former Member of Congress and Author of 47 U.S.C. §230. 

Electronic Frontier Foundation

The Reporters Committee For Freedom Of The Press, American Booksellers For Free Expression, American Civil Liberties Union, The Authors Guild Inc, Center For Democracy & Technology, The Media Coalition Foundation, And Media Law Resource Center