INTRODUCTION AND INTEREST OF AMICI CURIAE

Social media companies, large or small, offer privately owned and mediated spaces for people to associate and exchange ideas with people of like minds or unlike minds but like sensibilities. Different companies may have different mediation policies— some more lenient as to content, viewpoint, subject matter, or tone, others more restrictive as to any or all those criteria. But whether such policies are permissive, restrictive, or somewhere in between, they each represent the viewpoints and associational values of the companies setting such policies and, necessarily, of the individuals who agree to associate on those terms.

The suggestions by the Fifth Circuit that such companies are solely conduits for the speech of others and engage in no First Amendment protected activity of their own when they adopt and enforce their mediation policies completely misconceives what such companies are doing. Like newspapers curating opinion pieces or letters to the editor, parade organizers curating those invited to participate, or clubs deciding on who can be a member, social media companies are not only expressing their own organizational values, they are engaging in the essence of free association by selecting who they will and will not invite to participate and who they will exclude if they behave in a manner contrary to the organizers’ values. Suggesting that such entities do nothing more than pass along the speech of others, without “speaking” themselves when enforcing their mediation policies simply misunderstands what the companies are “saying” and ignores the free association aspect of their choices.

Calling such associational decisions “censorship,” as the Fifth Circuit repeatedly does, misuses that word, misunderstands that the decision not to associate with various persons or viewpoints is as fundamental to the First Amendment as the decisions affirmatively speaking or actively associating with others, and is incompatible with the First Amendment. Because the theories of the Fifth Circuit are so fundamentally destructive of First Amendment jurisprudence and principles, this case is of great interest to Amici.

Amicus Reason Foundation (Reason) is a national, nonpartisan, and nonprofit public policy think tank, founded in 1978. Reason’s mission is to advance a free society by applying and promoting libertarian principles and policies—including free markets, individual liberty, and the rule of law. Reason supports dynamic market-based public policies that allow and encourage individuals and voluntary institutions to flourish. Reason advances its mission by publishing Reason magazine, as well as commentary on its websites, and by issuing policy research reports. To further Reason’s commitment to “Free Minds and Free Markets” and equality before the law, Reason selectively participates as amicus curiae in cases raising significant issues.

Amicus Committee for Justice (CFJ) is a nonprofit, nonpartisan legal and policy organization founded in 2002 and dedicated to preserving the Constitution’s limits on government power and its guarantee of liberty, including the freedom of speech. CFJ works to advance the rule of law, including educating Americans about the importance of basing judicial decisions on the text of our Constitution and statutes, rather than on policy preferences. CFJ is particularly concerned with the preservation of these principles at the intersection of law, technology and innovation. Consistent with its mission, CFJ files amicus curiae briefs in key cases.

Amicus Competitive Enterprise Institute (CEI) is a nonprofit 501(c)(3) organization incorporated and headquartered in Washington, D.C., dedicated to promoting the principles of free markets and limited government. Since its founding in 1984, CEI has focused on raising public understanding of the problems of overregulation. It has done so through policy analysis, commentary, and litigation. One focus of CEI’s litigation arm has been criticism of instances, such as those in this case, in which government regulation interferes with the freedom of expressive association.

Amicus Taxpayers Protection Alliance (TPA) is a nonprofit 501(c)(4) Virginia non-stock corporation. TPA was founded as a taxpayer advocacy and education group with a free enterprise, less government, less taxes approach to taxpayer issues. TPA furthers its mission through its website, the preparation and dissemination of articles, analyses, and opinion pieces, and through broadcast television, radio, social media, and congressional testimony. Allowing American taxpayers to freely exercise their ownership rights in their personal property— especially their finances—is a paramount concern for TPA, American taxpayers, and their families. This case presents a stark example of the destruction of basic rights—to free speech, free press, and free association, and the ability of social media entities to use their private property in the exercise of those rights—that cuts to the core of TPA’s mission and interest in promoting a free-market agenda for taxpayers.

SUMMARY OF ARGUMENT

Amici agree with the NetChoice parties that the Fifth Circuit decision below misapplies multiple Supreme Court precedents such as Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986); Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (Turner I); Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996); and Manhattan Community Access Corporation v. Halleck, 139 S. Ct. 1921 (2019).

See NetChoice Br. (22-555) 1-2, 13-15, 18-30. They also agree that the Fifth Circuit fundamentally misconceives First Amendment protections for editorial activities of social media platforms as limited or subject to common carrier regulations. NetChoice Br. (22-555) 31-33.

And while the Fifth Circuit opinion presents a target-rich environment of still further error, Amici will focus on three particular conceptual errors in that opinion that cripple its premises and conclusions.

First, the Fifth Circuit opinion ignores the associational nature of social media platforms and their content and user moderation policies. The decision who to include or exclude from an expressive association is fundamental to the exercise of First Amendment rights not only of the organizers, but of the people who can choose whether to associate with the platforms and other users pursuant to whatever discretionary expressive parameters the platforms choose to define and refine their associations. Excluding individuals who violate those terms of engagement—even where such terms are content or viewpoint-based—is no different than the exclusion of individuals from numerous other associations based on the content, viewpoint, or manner of their expression.

Second, the Fifth Circuit opinion mistakenly concludes that size or popularity have any bearing on whether an expressive association is a common carrier, public accommodation, or anything of the sort. Cases suggesting as much in other contexts focus on the supposed monopolistic qualities of a private entity making speech or associational decisions, the limited avenues of alternative access, or the governmental property interest in a channel of communication, such as a public forum. And even then, such cases largely reject those supposed qualities as a basis for regulating the speech or association of private entities such as the platforms in this case. Furthermore, those few cases that might be thought to support a broader sweep to such common-carrier arguments are poorly reasoned, often criticized, and should be limited to their particular facts or rejected wholesale. Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) (broadcast television Fairness Doctrine), Turner Broad. Sys., Inc. v.  FCC, 520 U.S. 180 (1997)  (Turner  II)  (cable television must-carry rules); PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) (private shopping center access for leafleteers).

Narrowing the scope of common-carrier theories has special importance when dealing with expressive associations, as opposed to companies offering limited or constraining physical infrastructure, such as phone companies or internet backbone entities. The media companies here are not at all like such physical and technological pipelines, but rather are merely popular and large-scale versions of what any internet user could do on their own by hosting a website, chatroom, or other interactive service on readily available website hosts or purchased servers. That some social media entities have many users and hence a broad reach does not make them a monopoly given the myriad other paths to send to and receive information from anyone interested. Indeed, they are in a market that is literally teeming with competition. Users and advertisers are not limited to any given company’s service but can and do use multiple curated social media forums simultaneously, at low or no cost. And social media organizers can gain and lose non- exclusive market share precisely based on their content moderation choices, which ultimately shape the community of users and scope and tone of content that better fit the expressive association they are seeking to create.

Third, governmental benefits provided to corporations or interactive media platforms do not alter the First Amendment rights of such platforms and may not be conditioned on the waiver of such rights. The Fifth Circuit’s seeming disdain for the notion that corporations are protected by the First Amendment, Pet. App. (22-555) 3a, ignores decades of precedent and ignores that at the end of the day corporations are no more than associations of people coming together for common purposes, including expression. That they do so in order to make money does nothing to distinguish social media platforms from newspapers, magazines, television companies, book publishers, videogame companies, or any other for-profit company that engages in speech and associational activities.

Similarly, the additional benefits provided to interactive computer services and their users by Section 230 do not negate the expressive and associational qualities of the terms and application of content and user moderation policies. Section 230 provides protection beyond that of the First Amendment, but it does not act as a substitute for or negation of First Amendment protection. And even the terms of Section 230 itself distinguish between the speech of individual users of a particular platform and the expressive and associational choices made by the platform itself.