Brief of Amici Curiae Chamber of Progress; Access Now; Consumer Technology Association; HONR Network; Information Technology & Innovation Foundation; Information Technology Industry Council; Interactive Advertising Bureau; IP Justice; LGBT Tech; Stop Child Predators; TechNet; and Washington Center for Technology Policy Inclusion in Support of NetChoice

Statement of Interest

Amici focus on the enormous practical consequences if HB 20 and SB 7072—and similar laws enacted or under consideration elsewhere—are allowed to take effect. Websites rely on content moderation to help millions of Americans work, play, learn, shop, connect, and express themselves free from harassment, disinformation, and incendiary content. But, by foreclosing any meaningful ability of websites to engage in content curation, HB 20 and SB 7072 erase their very utility, denying them editorial control over the speech and ideas they publish and threatening severe harm to websites and their users.

Amici are organizations that are all deeply interested in ensuring that Americans may participate in healthy online environments. Amici and their members thus have a strong interest in ensuring that HB 20 and SB 7072, and similar laws around the country, are not permitted to threaten, disrupt, or destroy vibrant and diverse online communities.

Summary of Argument

The Internet has flourished under the strong First Amendment protections affirmed in Reno v. ACLU, 521 U.S. 844 (1997). Citing what would now be considered rudimentary “[w]eb pages, mail exploders, and newsgroups,” Reno noted that anyone could become a next-generation “pamphleteer,” id. at 870. Rejecting arguments that the Internet should receive weaker First Amendment protections, the Court held that, “unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a ‘scarce’ expressive commodity.” Id.

In the nearly three decades since, the Internet has become even more robust, less scarce, and used far more heavily. With strong, speech-affirming protections under the First Amendment and 47 U.S.C. § 230, websites large and small have thrived, supporting communities that span the globe. U.S. CONST. amend. I; 47 U.S.C. § 230. From support networks for LGBTQ+ youth to parental support groups, there is a place for everyone.

The Florida and Texas statutes, SB 7072 and HB 20, threaten all of this. Websites’ ability to exercise editorial discretion and the existence of varying websites upholding diverse rules are major reasons for the Internet’s success. Upholding either law would upend the Internet as we know it.

With the government regulating how online communities interact, websites would either need to allow divisive viewpoints like hate speech, restrict the topics that can be discussed, or a combination of both. Both prospects are likely to undermine civil discourse online and shut out speakers of all sorts, but particularly from vulnerable groups. Further, these laws would balkanize Internet regulation, permitting each state to dictate how websites operate. It may not even be technically or practically feasible for websites to geofence compliance along state lines, leading to potential conflicts between state laws or allowing single states to dictate national Internet policy.

All in all, upholding HB 20 or SB 7072 as constitutional would be a travesty for the Internet and the hundreds of millions of Americans who use it every day. The Court should reverse the Fifth Circuit and affirm the Eleventh Circuit.

Argument

1. The Court Should Affirm Websites’ Right to Curate Content.

a. The First Amendment Protects Online Speech.

b. Websites Engage in Online Speech by Exercising Editorial Discretion.

c. The Florida and Texas Statutes Violate the First Amendment Rights of Online Publishers.

2. Upholding Laws that Restrict Content Moderation Will Amplify the Most Extreme Voices, Shutting Out Marginalized Communities and Spreading Misinformation.

a. Social Media Websites Help People Find Community and Connection.

b. The Statutes Will Promote Divisive and Damaging Material, Polluting Online Communities and Endangering Vulnerable Groups.

c. The Statutes Will Also Compel Websites to Make Difficult Content Decisions, Endangering Diverse and Niche Online Spaces in Favor of More Commercially Viable Content.

d. Allowing These Statutes to Take Effect Will Initiate a Race to the Bottom, with States Vying to Implement Similar yet Increasingly Restrictive Content Regulations.

Read the full brief (PDF).

Conclusion

To ensure the First Amendment’s protection for speech endures in the digital age, the Court should reverse the Fifth Circuit and affirm the Eleventh Circuit.