23 January 2024. Representing a coalition of distinguished law and history scholars and in collaboration with the American Economic Liberties Project (AELP), Glenn Chappell, TZ’s Appellate Practice Group Chair, submitted an amicus brief in one of the most important Supreme Court cases this term, NetChoice LLC v. Paxton. Drawing on the scholars’ deep knowledge of American legal history and constitutional structure, the brief urged the Court to preserve the States’ power to prevent private industries from engaging in discrimination based on viewpoint or speaker, particularly in emerging digital spaces.
The scholars and AELP have extensively studied and published on the intricate interplay between the First Amendment and digital platforms, with a focus on digital product design laws, antitrust regulations, and American political development. In NetChoice, the State of Texas passed a law prohibiting social media platforms from “censoring” (such as blocking, banning, demonetizing, or limiting the visibility of) posts based on their content or who posted them. Although the scholars and AELP made clear that, as a policy matter, they would not support HB20 as written and have significant concerns with some of its provisions, it is crucial to avoid creating a broad First Amendment rule that immunizes digital platforms from neutral nondiscrimination regulations, which have protected public access and equal treatment in commercial spaces held open to the public throughout American history.
This represents a cornerstone case in federal and state policy affecting digital communication and technology. Nondiscrimination laws must be at the forefront of regulatory efforts to combat potential abuse in the digital age. The scholars and AELP explained why neutral nondiscrimination statutes like HB20 do not infringe social media operators’ First Amendment rights, as social media companies openly declare their platforms as forums for public discourse, those companies are free to disassociate themselves from content they do not approve of, and the public will not identify the views expressed by social media users with those of the platforms’ owners.
Moreover, the amici stressed the need for judicial modesty, signaling that a ruling against HB20 could set an untenable precedent affecting far-ranging regulations, from child social media laws to proposed antitrust initiatives and AI regulation. The scholars and AELP stressed that a balanced approach is crucial, as the consequences of the Supreme Court’s decision could reverberate for years to come.
In conclusion, the Court is called upon to hold that the non-censorship provision in Texas’s HB20 is facially constitutional and to affirm the Fifth Circuit’s ruling. In doing so, the Court would send a resounding message that states have the authority under our constitutional system to combat discrimination in public discourse and business interactions in the digital arena. The impact of this decision cannot be understated, with far-reaching consequences for the application of First Amendment principles in the digital age.
The case is NetChoice LLC, DBA NetChoice, et al. v. Ken Paxton, Attorney General of Texas, No. 22-555, in the Supreme Court of the United States.