Industry Groups Propose Amicus Briefs in Twitter’s Suit Against Texas AG

On Wednesday, various industry groups asked the Northern District of California to allow them to file amicus curiae briefs, which they included in the filing, in Twitter’s suit against Texas Attorney General Ken Paxton. In the lawsuit, Twitter is seeking to stop Paxton’s investigation into its content moderation practices.

In the motion filed by the Reporters Committee for Freedom of the Press, Center for Democracy and Technology, Electronic Frontier Foundation, Media Law Resource Center Inc., and PEN America, the groups claimed to “have a strong interest in protecting the free flow of information to the public.” They added that they “are concerned with the potential chilling effect this investigation may have on public discourse” and the First Amendment.

In the proposed brief, the groups contended that “any government effort to enforce what it deems viewpoint neutrality on a communications platform carries the temptation to compel platforms to carry speech perceived as favorable to the government, or, at the very least, that speech platforms would not otherwise carry. As such, these efforts pose a profound threat to First Amendment guarantees.” 

The amici noted that they are not taking a position on Twitter’s content moderation policies or practices, rather, they are arguing that “the choice to curate content in this way is fully protected by the First Amendment.” The amici alleged the Texas Attorney General’s effort to use Texas’s Deceptive Trade Practices-Consumer Protection Act (DTPA) to “investigate perceived ‘bias’ in content moderation would contravene the rule articulated by the Supreme Court in Miami Herald Pub. Co. v. Tornillo, namely, “that ‘government regulation’ of ‘editorial control and judgment’ cannot be ‘exercised consistent with First Amendment guarantees of a free press.’” 

The movants alleged that the Tornillo rule “is a crucial protection for the free flow of information.” They claimed that under Tornillo, the government cannot mandate certain things to be published and that the DTPA could be a risk of censorship if it is used to enforce net neutrality. The groups also proffered that the constitutional rights at issue, specifically “the discretion of a private entity to disseminate or not disseminate lawful content without government intervention,” is “particularly vulnerable to regulatory interference.” 

These groups, who asked the court to grant Twitter’s motion, are represented by counsel from the Reporters Committee for Freedom of the Press, Electronic Frontier Foundation, Center for Democracy & Technology, and PEN America.

According to the Internet Association’s (IA) motion, it is “a membership organization representing the Nation’s leading online service and technology providers.” According to its website, its members include Amazon, Facebook, Google, LinkedIn, Pinterest, Reddit, Snap Inc., and Twitter. IA noted that many of its members facilitate speech in various forums. IA added that “to ensure a quality user experience, internet companies exercise editorial discretion in the form of content moderation.” As a result, IA explained that it and its members “have a substantial interest in the circumstances in which the First Amendment permits their decisions regarding content on their platforms or suspending users from their websites to be subjected to risks, burdens, and uncertainties of government investigations, and possibly government penalties.”

IA’s proposed amicus curiae brief argued that content moderation is essential for social media platforms to function in order to ensure that content adheres to “community standards.” In particular, IA contended that social media companies engage in content moderation to provide “a healthy and safe environment,” and that “without the ability to prevent unwanted or offensive content, the services that Amicus’s members provide could become unsafe, unreliable, and therefore unattractive to users.” IA also claimed Paxton’s investigation into companies’ editorial practices violates the First Amendment.

The Internet Association, represented by Mayer Brown LLP, seeks for the court to grant Twitter’s motion for a preliminary injunction.