Nos.

22-277 and 22-555

IN THE
Supreme Court of the United States

ASHLEY MOODY, IN HER OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF FLORIDA, ET AL.
Petitioners,

v.

NETCHOICE, LLC; AND COMPUTER &

COMMUNICATIONS INDUSTRY ASSOCIATION,
Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Fifth and Eleventh Circuits

(For Continuation of Caption, See Inside Cover)

BRIEF OF AMICI CURIAE THE REPORTERS

COMMITTEE FOR FREEDOM OF THE PRESS,
AMERICAN CIVIL LIBERTIES UNION, ET AL.
IN SUPPORT OF RESPONDENTS IN NO. 22-
277 AND PETITIONERS IN NO. 22-555

David D. Cole Bruce D. Brown

AMERICAN CIVIL LIBERTIES Counsel of Record
UNION FOUNDATION Katie Townsend
915 15th Street, NW Gabe Rottman
Washington, DC 20005 Grayson Clary
Emily Hockett
REPORTERS COMMITTEE
FOR FREEDOM OF THE
PRESS
1156 15th St. NW,
Suite 1020
Washington, D.C. 20005
bruce.brown@rcfp.org
(202) 795-9300

Counsel for Amici Curiae

 Nos. 22-277 and 22-555

IN THE
Supreme Court of the United States

NETCHOICE, LLC; AND COMPUTER &

COMMUNICATIONS INDUSTRY ASSOCIATION,
Petitioners,
v.

KEN PAXTON, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF TEXAS,
Respondent.
 i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT...................................... 5

ARGUMENT ................................................................. 7

I. The First Amendment provides virtually

absolute protection for a private entity’s
exercise of its editorial judgment. ................... 7
a. The First Amendment protects a speaker’s
freedom to organize other speakers’ voices
for its audience. ........................................... 8
b. Texas and Florida have no legitimate
interest in picking which speakers deserve
to reach an audience. ................................ 17
II. The First Amendment forbids disclosure
mandates that target the exercise of editorial
judgment. ........................................................ 24
a. Compelling speakers to explain the basis
for their editorial judgment is not, as the
States argue, merely a commercial
disclosure subject to less First
Amendment scrutiny. ............................... 25
b. Editorial judgments are neither “factual”
nor “uncontroversial.” ............................... 28
CONCLUSION............................................................ 32
 ii

TABLE OF AUTHORITIES

Cases

Am. Meat Inst. v. U.S. Dep’t of Agric.,

760 F.3d 18 (D.C. Cir. 2014) ...................... 29, 30, 31

Buckley v. Valeo,
424 U.S. 1 (1976) ............................................. passim

Caraccioli v. Facebook, Inc.,

167 F. Supp. 3d 1056 (N.D. Cal. 2016),
aff’d, 700 F. App’x 588 (9th Cir. 2017) .................. 28

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n of N.Y.,
447 U.S. 557 (1980) ............................................ 26 27

City Council of L.A. v. Taxpayers for Vincent,

466 U.S. 789 (1984) ................................................. 21

City of Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750 (1988) ................................................. 22

Columbia Broad. Sys., Inc. v. Democratic Nat’l

Comm.,
412 U.S. 94 (1973) ..................................................... 6

Denver Area Educ. Telecomms. Consortium, Inc.

v. F.C.C.,
518 U.S. 727 (1996) ................................................... 5

Desnick v. Am. Broad. Cos.,

44 F.3d 1345 (7th Cir. 1995) .................................. 27

Edenfield v. Fane,
507 U.S 761 (1993) .................................................. 30
 iii

Gonzalez v. Google LLC,

598 U.S. 617 (2023) ................................................... 1

Hay v. N.Y. Media LLC,

No. 20-cv-6135, 2021 WL 2741653 (S.D.N.Y.
July 1, 2021),
aff’d, No. 21-1727, 2022 WL 710902
(2d Cir. Mar. 10, 2022)............................................ 27

Herbert v. Lando,
441 U.S. 153 (1979) .................................6, 24, 30, 31

Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Bos.,
515 U.S. 557 (1995) ......................................... passim

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) ....................................... 5, 12, 13

Kerson v. Vt. L. Sch., Inc.,

79 F.4th 257 (2d Cir. 2023) .................................... 16

McConnell v. F.E.C.,
540 U.S. 93 (2003) ................................................... 23

Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241 (1974) ......................................... passim

Minneapolis Star & Trib. Co. v. Minn. Comm’r

of Revenue,
460 U.S. 575 (1983) ................................................. 12

Murphy v. Twitter, Inc.,

60 Cal. App. 5th 12 (2021) ...................................... 28

Mutual Film Corp. v. Indus. Comm'n of Ohio,

236 U.S. 230 (1915),
 iv

overruled by Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) ........................................... 12, 13

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) ......................................... 8, 9, 19

Nat’l Inst. of Fam. & Life Advocs. v. Becerra,

138 S. Ct. 2361 (2018) ............................................. 31

Newspaper Guild of Greater Phila., Loc. 10 v.

N.L.R.B.,
636 F.2d 550 (D.C. Cir. 1980) .......................... 26, 27

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of

Cal.,
475 U.S. 1 (1986) ............................................. 8, 9, 10

Passaic Daily News v. N.L.R.B.,

736 F.2d 1543 (D.C. Cir. 1984) .............................. 20

Pittsburgh Press Co. v. Pittsburgh Comm’n on

Hum. Rels.,
413 U.S. 376 (1973) ................................................. 27

Prager Univ. v. Google LLC,

951 F.3d 991 (9th Cir. 2020) .................................. 28

PruneYard Shopping Ctr. v. Robins,

447 U.S. 74 (1980) ................................................... 17

Reno v. ACLU,
521 U.S. 844 (1997) ................................................... 1

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988) ................................................. 25
 v

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) ................................................. 21

Rumsfeld v. FAIR, Inc.,

547 U.S. 47 (2006) ................................................... 17

Turner Broad. Sys., Inc. v. F.C.C.,

512 U.S. 622 (1994) ....................................... 9, 22, 23

U.S. Telecom Ass’n v. F.C.C.,

855 F.3d 381 (D.C. Cir. 2017) .......................... 16, 17

Veilleux v. Nat’l Broad. Co.,

206 F.3d 92 (1st Cir. 2000) .................................... 27

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................................................. 29

Wash. Post v. McManus,

944 F.3d 506 (4th Cir. 2019) ............................ 25, 26

Wooley v. Maynard,
430 U.S. 705 (1977) ................................................. 21

Zauderer v. Off. of Disciplinary Counsel of Sup.

Ct. of Ohio,
471 U.S. 626 (1985) ........................................... 25, 29

Statutes

Fla. Stat. § 501.2041 ....................................... 12, 24, 26

H.B. 20, 87th Leg. (Tex. 2021) ................................... 22

S.B. 7072 (Fla. 2021) .................................................. 22

Tex. Bus. & Com. Code § 120.051 ............................. 29

 vi

Tex. Bus. & Com. Code § 120.103 ............................. 24

Tex. Bus. & Com. Code § 120.001 ............................. 12

Tex. Civ. Prac. & Rem. Code § 143A.001 .................. 14

Other Authorities

Anthony Lewis, Nixon and a Right of Reply,

N.Y. Times, Mar. 24, 1974, at E2,
https://perma.cc/2W2J-AJ65 .................................. 18

Appellant Br.,
NetChoice v. Paxton, No. 21-51178
(5th Cir. Mar. 2, 2022) ............................................ 11

Charles Fried, The New First Amendment

Jurisprudence: A Threat to Liberty, 59 U. Chic. L.
Rev. 225 (1992) ............................................................ 10

Distribution of Hacked Materials Policy, X,

https://perma.cc/PFW9-2J47
(last visited Dec. 3, 2023) ....................................... 15

Facebook Community Standards, Meta,

https://perma.cc/U6HA-NUYV
(last visited Dec. 3, 2023) ................................. 10, 14

Joe Pompeo, “Connect the Dots”: Marty Baron

Warns Washington Post Staff About Covering
Hacked Materials, Vanity Fair
(Sept. 23, 2020),
https://bit.ly/3T5FCjh ............................................. 16

Jon Marshall, Watergate’s Legacy and the Press

(2011) .......................................................................... 8
 vii

LinkedIn Professional Community Policies,

LinkedIn,
https://perma.cc/MUF8-ZUX4
(last visited Dec. 3, 2023) ....................................... 10

Lucas A. Powe Jr., The Fourth Estate and the

Constitution (1992) ........................................... 19, 20

Monica Anderson, After Musk’s Takeover, Big

Shifts in How Republican and Democratic
Twitter Users View the Platform,
Pew Rsch. Ctr. (May 1, 2023),
https://perma.cc/5LG6-7RLZ .................................. 15

Our Approach to Newsworthy Content, Meta

(Aug. 29, 2023),
https://perma.cc/EUK8-APVG................................ 15

Our Approach to Policy Development and

Enforcement Philosophy, X,
https://perma.cc/YY9P-KUL5
(last visited Nov. 8, 2023) ....................................... 15

Policies and Standards, Wash. Post,

https://perma.cc/Y76W-5YNP
(last visited Sept. 26, 2023) .................................... 27

Policies Overview, YouTube,

https://perma.cc/2N8Q-CL7X
(last visited Dec. 3, 2023) ....................................... 10
 viii

Press Release, Ken Paxton, Att’y Gen. of Texas,

AG Paxton Issues Civil Investigative Demands
to Five Leading Tech Companies Regarding
Discriminatory and Biased Policies and
Practices (Jan. 13, 2021),
https://perma.cc/JYW3-S9S6.................................. 18

Press Release, Off. of the Tex. Governor,

Governor Abbott Signs Law Protecting Texans
from Wrongful Social Media Censorship
(Sept. 9, 2021),
https://perma.cc/2EL2-8H9Q ................................. 31

Richard Harris, The Presidency and the Press, New

Yorker (Sept. 24, 1973), https://bit.ly/3GuSurw
................................................................................. 8

Samantha Barbas, How the Movies Became

Speech,
64 Rutgers L. Rev. 665 (2012)................................ 13

Standards and Ethics, N.Y. Times,

https://perma.cc/793S-67V9
(last visited Sept. 26, 2023) .................................... 26

The X Rules, X,
https://perma.cc/VG7D-ULZ9
(last visited Dec. 3, 2023) ....................................... 14

What is Pinterest?, Pinterest,

https://perma.cc/74DZ-85L7
(last visited Dec. 3, 2023) ....................................... 16

William O. Douglas, The Bill of Rights Is Not

Enough, in The Great Rights (Edmond Cahn
ed., 1963) .................................................................. 19
 1

INTEREST OF AMICI CURIAE1

Lead amicus the Reporters Committee for

Freedom of the Press (“Reporters Committee”) is an
unincorporated nonprofit association founded by
leading journalists and media lawyers in 1970, when
the nation’s news media faced an unprecedented wave
of government subpoenas forcing reporters to name
confidential sources. Today, its attorneys provide pro
bono legal representation, amicus curiae support, and
other legal resources to protect the newsgathering and
publication rights of journalists around the country.

The American Civil Liberties Union (“ACLU”)

is a nationwide, nonprofit, nonpartisan organization
dedicated to the principles of liberty and equality
embodied in the Constitution and our nation’s civil
rights laws. The ACLU of Texas and the ACLU of
Florida are state affiliates of the national ACLU. The
ACLU and its affiliates have frequently appeared in
First Amendment cases in this Court and courts
around the country, both as direct counsel and as
amici curiae, including seminal cases regarding free
speech online and editorial discretion. See, e.g.,
Gonzalez v. Google LLC, 598 U.S. 617 (2023) (amicus);
Reno v. ACLU, 521 U.S. 844 (1997) (counsel); Miami
Herald Publ’g Co v. Tornillo, 418 U.S. 241 (1974)
(amicus).

1 Pursuant to Supreme Court Rule 37, counsel for amici

curiae state that no party’s counsel authored this brief in whole
or in part; no party or party’s counsel made a monetary
contribution intended to fund the preparation or submission of
this brief; and no person other than the amici curiae, their
members or their counsel made a monetary contribution
intended to fund the preparation or submission of this brief.
 2

The American Booksellers for Free

Expression (“ABFE”) is the free speech initiative of
the American Booksellers Association (“ABA”). ABA
was founded in 1900 and is a national not-for-profit
trade organization that works to help independently
owned bookstores grow and succeed. ABA represents
2,100 member companies operating in 2,500 locations.
ABA’s core members are key participants in their
communities' local economy and culture, and to assist
them ABA provides education, information
dissemination, business products, and services;
creates relevant programs; and engages in public
policy, industry, and local first advocacy.

The Authors Guild was founded in 1912, and is

a national non-profit association of more than 14,000
professional, published writers of all
genres. The Guild counts historians, biographers,
academicians, journalists, and other writers of non-
fiction and fiction as members; many are frequent
contributors to the most influential and well-
respected publications in every
field. The Guild works to promote the rights and
professional interest of authors in various areas,
including copyright and artificial intelligence, as well
the authors’ right to fair contracts and the ability to
earn a livable wage. One of the Authors Guild's
primary areas of advocacy is to protect the free
expression rights of authors.

Digital Media Association (“DiMA”) is the

leading trade association advocating for the digital
music innovations that have created unparalleled
consumer choice and revolutionized the way music
 3

fans and artists connect. Representing the world’s

leading audio streaming companies for over two
decades, DiMA’s mission is to promote and protect the
ability of music fans to engage with creative content
whenever and wherever they want and for artists to
more easily reach old fans and make new ones.

The Entertainment Software Association

(“ESA”) is the U.S. trade association that serves as the
voice and advocate for the U.S. video game industry.
Its members are the innovators, creators, publishers,
and business leaders that are reimagining
entertainment and transforming how we interact,
learn, connect, and play. ESA works to expand and
protect the dynamic marketplace for video games
through innovative and engaging initiatives that
showcase the positive impact of video games on
people, culture, and the economy. ESA also promotes
its members’ exercise of free-speech rights, including
the exercise of editorial judgment in content
moderation for the purpose of player safety, and
protects their content from mass infringement. ESA
also regularly participates in litigation that affects its
members’ interests, and in 2011, ESA was a
respondent in Brown v. Entertainment Merchants
Association, 564 U.S. 786 (2011), where the Supreme
Court recognized that video games are entitled to the
same First Amendment protections as books,
television programs, films, and other expressive
works.

The Media Coalition Foundation, Inc., monitors

legal threats to First Amendment rights, and engages
in strategic litigation and provides amicus support in
notable cases to protect the rights of speakers and
 4

those seeking to access speech, as guaranteed by the

First Amendment.

The Motion Picture Association, Inc. (“MPA”) is

a not-for-profit trade association founded in
1922. The MPA serves as the voice and advocate of
the film, television, and streaming industry,
advancing the business and art of storytelling,
protecting the creative and artistic freedoms of
storytellers, and supporting the creative ecosystem
that brings entertainment and inspiration to
audiences worldwide. The MPA’s member companies
are Paramount Pictures Corporation, Sony Pictures
Entertainment Inc., Universal City Studios LLC,
Walt Disney Studios Motion Pictures, Warner Bros.
Entertainment Inc., and Netflix Studios, LLC. These
companies and their affiliates are the leading
producers and distributors of the vast majority of
filmed entertainment in the United States through
the theatrical and home entertainment markets. Of
particular relevance for this case, the MPA’s members
all operate internet streaming services (including
Netflix, Disney+, Max, Peacock, Paramount+, and
Crunchyroll), which carry movies and television
programs produced by them (or their affiliates) and by
third parties, and which exercise First Amendment-
protected choices in determining what content to
exhibit to their subscribers.
 5

SUMMARY OF ARGUMENT

The First Amendment guarantees “virtually

insurmountable” protection for a private entity’s
expressive decision to share––or not to share––
another speaker’s lawful expression with their own
audience. Miami Herald Publ’g Co. v. Tornillo, 418
U.S. 241, 259 (1974) (White, J., concurring). An
enormous spectrum of speakers, publishers, and
journalists rely on that bulwark to “combin[e]
multifarious voices” for the benefit of their audiences.
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
Bos., 515 U.S. 557, 569 (1995). And while the danger
of government overreach is most obvious when
officials seek to usurp the “choice of material to go into
a newspaper,” Tornillo, 418 U.S. at 258 (majority
opinion), the same fundamental freedom underpins a
bookseller’s judgments about which volumes to
display, see Denver Area Educ. Telecomms.
Consortium, Inc, v. F.C.C., 518 U.S. 727, 816 (1996)
(Thomas, J., concurring in the judgment in part and
dissenting in part), or a movie theater’s choice of films
to exhibit, see Joseph Burstyn, Inc. v. Wilson, 343 U.S.
495, 502 (1952). In each case, government cannot
constitutionally define what news is fit to print or
which books are worth stocking, and has no license to
“restrict the speech of some elements of our society in
order to enhance the relative voice of others.” Buckley
v. Valeo, 424 U.S. 1, 48–49 (1976).

The alternative approach would be incompatible

with a free and independent press, as “[w]e have
learned, and continue to learn, from what we view as
the unhappy experiences of other nations where
government has been allowed to meddle in the
 6

internal editorial affairs of newspapers.” Tornillo,

418 U.S. at 259 (White, J., concurring). But in these
cases, Texas and Florida would undermine the First
Amendment’s safeguards for editorial independence
to commandeer the audiences of a handful of large
online platforms that, in their view, make unfair or
unwise—or even worse, biased—judgments about the
speech that deserves to be shared with their users.
And to enforce their dangerous fantasy of a
government-mandated balance of views, the States
hope to “subject[] the editorial process” of those social
media companies to “official examination,” Herbert v.
Lando, 441 U.S. 153, 174 (1979), through the
reporting requirements in these laws. Both efforts
challenge core mainstays of this Court’s long-held
precedents on freedom of speech.

While the States have chosen to target certain

new digital platforms today, they have yet to
distinguish the expressive judgments their statutes
target from the ones made daily by a litany of other
speakers, from the traditional press to Hollywood
studios. Cf. Columbia Broad. Sys., Inc. v. Democratic
Nat’l Comm., 412 U.S. 94, 144–45 (1973) (Stewart, J.,
concurring) (highlighting the danger posed by
arguments for “greater Government control of press
freedom” in new media that “would require no great
ingenuity” to extend to newspapers). The States’
failure to offer a principled distinction between
platforms and other speakers means that Texas and
Florida’s effort to create a bypass around Tornillo
would actually bulldoze it.

Amici are organizations that defend the

Constitution’s protections for editorial discretion by
 7

private speakers—news organizations, booksellers,

film studios, video game publishers, and more. For
the reasons herein, and because upholding Texas and
Florida’s intrusion on editorial autonomy would
undermine the rights of publishers of all kinds, amici
respectfully urge this Court to reverse the decision of
the Fifth Circuit and affirm the decision of the
Eleventh Circuit.

ARGUMENT

I. The First Amendment provides virtually

absolute protection for a private entity’s
exercise of its editorial judgment.

This Court has long recognized that the First

Amendment protects not just the solo voice on a
soapbox or the lone pamphleteer but also “the function
of editors”: the liberty accorded to the press and other
institutions to collect and organize other speakers’
perspectives for their own audiences. Tornillo, 418
U.S. at 258. And where that liberty is squarely at
stake, the Constitution’s protections are virtually
absolute, because the government has no legitimate
interest in “restrict[ing] the speech of some elements
of our society in order to enhance the relative voice of
others.” Buckley, 424 U.S. at 48–49.

Put differently, editorial control—which

includes decisions about the relative prominence that
the elements of an “edited compilation of speech”
deserve, Hurley, 515 U.S. at 570—cannot be shared
with the state. A newspaper forced to give up only
one-tenth of the front page to the government loses
the same autonomy over its editorial discretion as the
 8

utility company forced to hand over the “extra space”

in its billing envelopes to a third-party speaker. See
Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475
U.S. 1, 17–18 (1986) (plurality opinion). The First
Amendment forbids such actions because the
government does not get to decide what is or isn’t fit
to print or even what kind of newsletter is inserted
with a monthly electric bill. Because the States’
efforts to hijack the expressive functions of social
media platforms challenge that bedrock principle,
they cannot be squared with the Constitution.

a. The First Amendment protects a

speaker’s freedom to organize other
speakers’ voices for its audience.

Tornillo arose out of the print newspaper world

of the 1970s, when government efforts to control
information sparked widespread concern. See
Richard Harris, The Presidency and the Press, New
Yorker (Sept. 24, 1973), https://bit.ly/3GuSurw;
(cataloging growing state pressure on investigative
reporting over previous two decades); Jon Marshall,
Watergate’s Legacy and the Press 51–72 (2011)
(surveying pressure tactics from the Nixon
administration to influence news coverage). Its
unanimous holding has stood the test of time, and
along with New York Times Co. v. Sullivan, 376 U.S.
254 (1964), another unanimous decision of this Court,
it is a pillar of our First Amendment jurisprudence.
The central insight of Tornillo—that a
supernumerary role for government in matters of
editorial freedom is a reckless gamble with the
Constitution—is one this Court has now extended far
beyond the news media.
 9

Some speakers, like the editorial board in

Tornillo, may communicate using their own voice
alone; others speak by “combining multifarious
voices” for their audiences. Hurley, 515 U.S. at 570.
The latter includes bookstores, museums, theaters,
art galleries, concert halls, and digital platforms like
social media websites. And as this Court has
recognized again and again since Tornillo, the First
Amendment shields the second type of speech as
surely as it does the first. Such protections are rooted
in a deep structural understanding that in a nation in
which the “censorial power is in the people over the
Government, and not in the Government over the
people,” Sullivan, 376 U.S. at 275 (internal quotation
marks and citations omitted), the risk that public
officials will thumb the scale of political discourse to
their advantage is too great to give them the last word
on what a private speaker may say.

This Court’s decisions have applied that

reasoning to protect the editorial discretion of
newspapers deciding which guest columns belong in
their pages, Tornillo, 418 U.S. at 258; cable companies
choosing which stations to offer, see Turner Broad.
Sys., Inc. v. F.C.C., 512 U.S. 622, 636 (1994); parade
organizers selecting which groups can march, see
Hurley, 515 U.S. at 568; and even utility companies
deciding what to include in their billing envelopes, see
Pac. Gas & Elec. Co., 475 U.S. at 20. In each case, the
Constitution has been held to protect private entities
not just in authoring speech but also in
“transmit[ing]” it to a new audience, Turner, 512 U.S.
at 636, and to subject government efforts to use the
latter type of expression “as a vehicle for spreading a
 10

message with which [the private entity] disagrees” to

First Amendment scrutiny, Pac. Gas & Elec. Co., 475
U.S. at 17; see also Charles Fried, The New First
Amendment Jurisprudence: A Threat to Liberty, 59 U.
Chic. L. Rev. 225, 253 (1992) (“Forced programming is
not so much a way of getting a message to the public
. . . as it is a way of showing off power by hoisting flags
on other people’s flagpoles.”).

State interference in the content moderation

decisions of the social media platforms would carry a
similar risk of government control over the content
communicated by a private entity. Texas and Florida
have imposed their views on the order and fashion in
which posts from particular users should be displayed
as well as on decisions about whether platforms host
certain users or perspectives in the first place. But
these choices belong with the platforms because they
reflect their editorial judgments about the companies
they run and the conversations they facilitate.
Content moderation policies and the decisions made
under them help to define social media platforms and
distinguish them from one another. See, e.g.,
Facebook Community Standards, Meta,
https://perma.cc/U6HA-NUYV (last visited Dec. 3,
2023) (explaining that Meta’s content decisions aim to
communicate, inter alia, the belief “that all people are
equal in dignity” and a preference for “authentic”
expression); Professional Community Policies,
LinkedIn, https://perma.cc/MUF8-ZUX4 (last visited
Dec. 3, 2023) (“LinkedIn’s mission is to connect the
world’s professionals” and “[w]e allow broad
conversations about the world of work, but require
professional expression.”); Policies Overview,
YouTube, https://perma.cc/2N8Q-CL7X (last visited
 11

Dec. 3, 2023) (“Viewers and Creators around the world

use YouTube to express their ideas and opinions
freely, and we believe that a broad range of
perspectives ultimately makes us a stronger and more
informed society, even if we disagree with some of
those views.”). The endgame of the Texas and Florida
laws is that state officials will have deployed the
coercive power of the government to lift the “relative
voice” of some and suppress the “relative voice” of
others, Buckley, 424 U.S. at 49, all to gratify their
desire for online discourse that meets their ideological
whims.

Fighting that conclusion, Texas and Florida

have defended their statutes on the theory that
prohibiting content moderation does not implicate the
First Amendment at all, because social media
companies do not—in some hazy overall sense—
resemble newspapers. See, e.g., Appellant Br. at 16,
NetChoice v. Paxton, No. 21-51178 (5th Cir. Mar. 2,
2022) (characterizing Tornillo as an “outlier precedent
about newspapers”). But that defense misses the
point: Newspapers do not resemble parades, parades
do not resemble utility companies, and newspapers do
not resemble social media companies. Tornillo,
however, is not the exclusive property of news
organizations, though its continued vitality is
existential to the watchdog function of the press and
the flow of information to the public. Rather, Tornillo
is a check on government whenever it seeks a role in
policing how the news media, or any other expressive
industry, makes editorial choices. As this Court has
left it well-settled, the rule is “enjoyed by business
corporations generally and by ordinary people
 12

engaged in unsophisticated expression as well as by

professional publishers.” Hurley, 515 U.S. at 574.

That Texas and Florida have both crafted their

statutes in a manner that could be read to
superficially favor the press only highlights the
danger. See Tex. Bus. & Com. Code, § 120.001(C)(i)–
(ii) (exempting from regulation any site that “consists
primarily of news”); Fla. Stat. § 501.2041(2)(j)
(prohibiting platforms from moderating the content of
“journalistic enterprises”). This Court has often
emphasized that “the very selection of the press for
special treatment threatens the press not only with
the current differential treatment, but with the
possibility of subsequent differentially more
burdensome treatment.” Minneapolis Star & Trib.
Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 588
(1983). So too here, where the States have offered no
limiting principle that would prevent them from
turning their attention to controlling the editorial
judgment of other private speakers, including the
news media.

The trajectory of this Court’s case law applying

the First Amendment to motion pictures illustrates
the danger of too narrow an application of the Tornillo
rule. In Mutual Film Corp. v. Industrial Commission
of Ohio, 236 U.S. 230, 244 (1915), overruled by
Burstyn, 343 U.S. at 502, this Court infamously
concluded that movies were beyond the reach of the
First Amendment because the film industry lacked an
adequate “practical and legal similitude to a free
press.” Motion pictures were, in the Court’s view,
better understood as “a business, pure and simple,
originated and conducted for profit, like other
 13

spectacles, not to be regarded . . . as part of the press

of the country,” 236 U.S. at 244.

That holding underpinned extensive state

censorship of the film industry for nearly half a
century, including (or even especially) the censorship
of newsreels that aimed to inform the public of
controversial political developments. See Samantha
Barbas, How the Movies Became Speech, 64 Rutgers
L. Rev. 665, 703 (2012) (noting that states relied on
Mutual to censor, among other things, a popular
newsreel of a Senator’s speech “opposing President
Roosevelt’s bill to enlarge the Supreme Court”). In
other words, the Mutual Court’s insistence on limiting
the First Amendment’s reach to lookalikes for “the
press” licensed official interference with the
distribution of news and other information about
matters of obvious public concern. Forty years later,
this Court decisively repudiated that approach in
favor of the common-sense recognition that—
whatever a particular medium’s resemblance or not to
print media and “whatever the challenges of applying
the Constitution to ever-advancing technology . . .
when a new and different medium for communication
appears,” Brown v. Entm’t Merchants Assn., 564 U.S.
786, 790 (2011)—“the basic principles of freedom of
speech and the press, like the First Amendment’s
command, do not vary,” Burstyn, 343 U.S. at 503. So
too here. The Tornillo rule applies not to newspapers
only, but also to any private entity that engages in
expression by collating the voices of other speakers.

The relevant question, then, is not whether the

entities regulated by a statute resemble newspapers
but whether the choices regulated by the statute
 14

reflect “the exercise of editorial control and

judgment.” Tornillo, 418 U.S. at 258. And the
decisions at issue in these cases plainly do. Texas has
regulated what it calls “Censor[ship],” defined to
mean “to block, ban, remove, deplatform, demonetize,
de-boost, restrict, deny equal access or visibility to, or
otherwise discriminate against expression,” Tex. Civ.
Prac. & Rem. Code § 143A.001(1); in other words,
decisions about what to express and what not to
express. To the same effect, Florida has regulated
“Censor[ing],” “Deplatform[ing],” and “Shadow
ban[ning],” Fla. Stat. § 501.2041(1), activities which
encompass decisions about whether, when, and how
to communicate user-generated expression to the
platforms’ audiences. But those choices are the same
means by which social media platforms express their
own point of view as to what expression “serve[s]—
and does not serve—the public conversation,” The X
Rules, X, https://perma.cc/VG7D-ULZ9 (last visited
Dec. 3, 2023), bringing the First Amendment’s
protections into play.

Of course, exactly because the social media

platforms regulated here take the view that civil
discourse is best served when “everyone’s voice is
valued,” Facebook Community Standards, supra, they
are “rather lenient in admitting participants”—but
the First Amendment does not require a speaker “to
edit their themes to isolate an exact message,” Hurley,
515 U.S. at 569. It may be difficult for readers to
distill a concise theory of newsworthiness from their
daily papers except by pointing to the sum of the
stories that happened to be published that day, or for
a visitor to articulate a gallery’s assessment of artistic
merit except by nodding towards the collection of
 15

paintings it displays. But in either case, a clear

central message is conveyed: that each element in the
whole “was worthy of presentation” in the eyes of the
speaker that included it. Id. at 575. And as the
controversy that frequently attends the platforms’
moderation decisions makes clear, the public
routinely infers the same “overall message” of worth
from those expressive choices. Id. at 577; see, e.g.,
Monica Anderson, After Musk’s Takeover, Big Shifts
in How Republican and Democratic Twitter Users
View the Platform, Pew Rsch. Ctr. (May 1, 2023),
https://perma.cc/5LG6-7RLZ (describing changes in
public opinion on X’s impact on civic discourse after
recent modifications to its moderation standards).

But even setting aside the wholesale

impression that the platforms’ editorial choices
create, see Hurley, 515 U.S. at 569 (emphasizing that
“a narrow, succinctly articulable message is not a
condition of constitutional protection”), the decisions
that Texas and Florida would regulate reflect “the
exercise of editorial control and judgment” at the
retail level too. Tornillo, 418 U.S. at 258. Sometimes,
for instance, Meta and X may think like a newspaper
by asking whether user expression is “newsworthy”
when judging how broadly it should be disseminated.
Our Approach to Newsworthy Content, Meta (Aug. 29,
2023), https://perma.cc/EUK8-APVG; Our Approach
to Policy Development and Enforcement Philosophy, X,
https://perma.cc/YY9P-KUL5 (last visited Nov. 8,
2023). And they consider, too, the reliability and
authenticity of third-party expression in deciding how
large an audience it deserves to reach. Compare, e.g.,
Distribution of Hacked Materials Policy, X,
https://perma.cc/PFW9-2J47 (last visited Dec. 3,
 16

2023), with Joe Pompeo, “Connect the Dots”: Marty

Baron Warns Washington Post Staff About Covering
Hacked Materials, Vanity Fair (Sept. 23, 2020),
https://bit.ly/3T5FCjh. The fact that those choices
may be controversial or subject to criticism only
underlines that they involve expressive judgment, not
the mechanical operation of “a passive receptacle or
conduit.” Tornillo, 418 U.S. at 258.

Just as editorial autonomy is not a “benefit

restricted to the press,” Hurley, 515 U.S. at 574, the
platforms also make choices that resemble those of
other institutions that speak by moderating the
speech of others. For example, video game publishers
conduct content moderation in video games to keep
players safe online and in doing so, exercise editorial
discretion and judgment. At times, the platforms
might organize creators’ content for display—as a
museum or gallery might—based on what they think
would appeal to their audiences. See, e.g., What is
Pinterest?, Pinterest, https://perma.cc/74DZ-85L7
(last visited Dec. 3, 2023) (“Your home feed is where
you’ll find Pins, people and business we think you’ll
love, based on your recent activity.”); cf. Kerson v. Vt.
L. School, Inc., 79 F.4th 257, 270 n.10 (2d Cir. 2023)
(noting without resolving the “potential First
Amendment concern that might flow from
interpreting [the Visual Artists Rights Act] as
requiring a private party to continue displaying
expressive content against its will”). In other
postures, the platforms may aim for
comprehensiveness—like “a newsstand [that] carries
all newspapers,” see U.S. Telecom. Ass’n v. FCC, 855
F.3d 381, 429 (D.C. Cir. 2017) (Kavanaugh, J.,
dissenting from denial of rehearing en banc)—while
 17

nevertheless displaying most prominently the speech

they expect their audiences to find most appealing.

In each context, the key point is the same:

Whether a platform opts to be selective or non-
selective, very selective or only minimally selective,
those choices are themselves expressive, and the
platforms’ “own message” is necessarily affected by
any expression the government seeks to “force[]” them
“to accommodate.” Rumsfeld v. FAIR, Inc., 547 U.S.
47, 63 (2006). Of course, a business’s decision about
whether to transact with a third-party cannot always
be couched in such terms. Nothing legible is
communicated by a shopping mall’s customers, see
Pruneyard Shopping Center v. Robins, 447 U.S. 74,
87–88 (1980), the collection of private calls
transmitted over a telephone line, or a law school’s
roster of recruiters, see FAIR, 547 U.S. at 63, nor are
those individual interactions “inherently expressive,”
id. at 64. But the product a social media platform
offers is the “editorial control and judgment” it
promises to exercise, without which the expressive
environment they offer would be either
unrecognizable or unusable. Tornillo, 418 U.S. at 258.
The First Amendment protects those decisions.

b. Texas and Florida have no legitimate

interest in picking which speakers
deserve to reach an audience.

Under this Court’s precedent, to demonstrate

that the government has deliberately “intru[ded] into
the function of editors” nearly always suffices to
establish that the First Amendment has been
violated. Tornillo, 418 U.S. at 258. As Tornillo and
 18

its progeny make clear, that “virtually

insurmountable” bar on “government tampering” with
editorial discretion, id. at 259 (White, J., concurring),
flows from the reality that the government has no
legitimate interest in displacing a publisher’s sense of
the “relative voice” that other speakers deserve within
the publisher’s own expression, Buckley, 424 U.S. at
49.

In Tornillo this Court invalidated Florida’s

“right of reply” statute, which “grant[ed] a political
candidate a right to equal space to reply to criticism
and attacks on his record by a newspaper.” Tornillo,
418 U.S. at 243, 258. Then, as now, debates about
editorial fairness were widely understood as proxies
for broader political disagreements in American life.2
But this Court made clear that those disagreements
cannot be legislated away; that state control of the
“choice of material” to include in a newspaper cannot
be “exercised consistent with First Amendment
guarantees,” id. at 258; and that whether a given
editorial judgment is “fair or unfair” has no bearing on
the analysis, id. As Chief Justice Burger’s opinion for
the Court emphasized, in addition to the direct threat
of censorship raised when the government supervises

2 Compare, e.g., Anthony Lewis, Nixon and a Right of

Reply, N.Y. Times, Mar. 24, 1974, at E2, https://perma.cc/2W2J-
AJ65 (noting that President Nixon urged the Justice Department
to explore a federal right-of-reply statute because of press
coverage he believed was unfair), with Press Release, Ken
Paxton, Att’y Gen. of Texas, AG Paxton Issues Civil Investigative
Demands to Five Leading Tech Companies Regarding
Discriminatory and Biased Policies and Practices (Jan. 13, 2021),
https://perma.cc/JYW3-S9S6 (resolving to investigate the
“removing and blocking [of] President Donald Trump from online
media platforms”).
 19

the “treatment of public issues and public officials,”

id., a “[g]overnment-enforced right of access
inescapably ‘dampens the vigor and limits the variety
of public debate,’” id. at 257 (quoting Sullivan, 376
U.S. at 279), flattening diverse editorial points of view
into a single voice.

It bears underlining that this Court’s decision in

Tornillo did not turn on a rosy view of how either the
Miami Herald in particular or the press in general
exercises the editorial judgment the Constitution fully
protects. To the contrary, in the first half of the
Court’s opinion, Chief Justice Burger summarized
with sympathy concerns that powerful media
corporations “too often hammer[] away on one
ideological or political line using [their] monopoly
position not to educate people, not to promote debate,
but to inculcate in [their] readers one philosophy, one
attitude—and to make money.” Tornillo, 418 U.S. at
253 (quoting William O. Douglas, The Bill of Rights Is
Not Enough, in The Great Rights 124–25 (Edmond
Cahn ed., 1963)); see also Lucas A. Powe Jr., The
Fourth Estate and the Constitution 271 (1992) (noting
that a reader “stopping there” would assume the
Herald had lost). “But the balance struck by the First
Amendment with respect to the press is that society
must take the risk that occasionally debate on vital
matters will not be comprehensive and that all
viewpoints may not be expressed,” Tornillo, 418 U.S.
at 260 (White, J., concurring), because the dangers
posed by the alternative path—assigning the
government the power to tinker with public debate
until its own self-fulfilling sense of fairness is
satisfied—are far graver.
 20

Tellingly, having canvassed the potential First

Amendment harms, this Court made no reference to
strict, intermediate, or any other form of means-end
scrutiny in invalidating Florida’s right of reply
statute. Instead, Tornillo concludes that “any such
compulsion to publish that which reason tells [an
editor] should not be published is unconstitutional.”
418 U.S. at 256 (internal quotation marks omitted);
see also Passaic Daily News v. NLRB, 736 F.2d 1543,
1557 (D.C. Cir. 1984) (“The Supreme Court has
implied consistently that newspapers have absolute
discretion to determine the contents of their
newspapers.”); Powe, supra, at 277 (“Because editorial
autonomy is indivisible, it must be absolute.”). And
for good reason. As this Court emphasized in
Hurley—likewise without applying the tiers of
scrutiny—there is no need for further analysis when
the government fails to “identify[] an interest going
beyond abridgment of speech itself.” 515 U.S. at 577.
But just as in Tornillo and Hurley, Texas and Florida
have offered nothing but variations on the same
argument that their statutes serve an interest in
altering the balance of views the platforms
communicate—and with it the platforms’ own overall
message. That goal is fatal to the statutes’ validity
under any standard of review. See Hurley, 515 U.S.
at 577.

This Court’s case law on viewpoint

discrimination leads to the same result by a
complementary route. Using a private institution’s
expression as a vehicle for a state-sanctioned
viewpoint is “so plainly illegitimate” as to
“immediately invalidate” any statute or government
action that aims to do it. City Council of L.A. v.
 21

Taxpayers for Vincent, 466 U.S. 789, 804 (1984);

accord Wooley v. Maynard, 430 U.S. 705, 717 (1977)
(“[W]here the State’s interest is to disseminate an
ideology, . . . such interest cannot outweigh an
individual’s First Amendment right to avoid becoming
the courier for such message.” (emphasis added)).

Moreover, because an editorial viewpoint is

nothing more or less than the entirety of an editor’s
choices, even a superficially ‘content-neutral’
intrusion on that function—like a mandate that a
newspaper’s front page list events in chronological
order—necessarily enforces a single point of view as
to how the day’s news is best arranged, to the
exclusion of every perspective the state disfavors.
And as this Court has underlined, to say “that debate
is not skewed so long as multiple voices are silenced is
simply wrong; the debate is skewed in multiple ways.”
Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S. 819, 831–32 (1995). So too when the government
silences every alternative to an official editorial
perspective, even a notionally ‘neutral’ one; the
position that all lawful expression is “worthy of
presentation” to the platforms’ audiences is just as
much a viewpoint as the perspective that much, some,
or little of it is. Hurley, 515 U.S. at 575. The
Constitution prohibits the States from enforcing any
one of those viewpoints to the exclusion of the others.3

3 Of course, the principles underpinning Tornillo do not

prohibit all regulation of institutions that exercise editorial
discretion, and the same is true of social media platforms. Those
safeguards are only triggered in the first place by state action
that directly regulates editorial choices. Newspapers, parades,
and platforms are all just as bound as any other entity by, say,
the generally applicable law of antitrust. See Tornillo, 418 U.S.
 22

Through either lens, the States’ efforts to

mandate their view of editorial fairness online violate
the First Amendment. Texas and Florida have
couched their goals in terms of “protecting the free
exchange of ideas and information,” H.B. 20 § 1(2),
87th Leg. (Tex. 2021), and “protecting [their]
residents from inconsistent and unfair” content
moderation, S.B. 7072 § 1(10) (Fla. 2021). But those
aims are identical to the ones this Court found
unconstitutional in Tornillo: “to insure fairness and
accuracy” in editorial decisionmaking, 418 U.S. at
251, while “ensur[ing] that a wide variety of views
reach the public,” id. at 247–48. And just as in
Tornillo, as lofty as those goals may sound in the
abstract, in context they express an intent to replace
the platforms’ point of view as to the speech “worthy
of presentation” to their audiences, Hurley, 515 U.S.
at 575, with an editorial perspective that state
officials—with their own biases and agendas, often
electoral, sometimes punitive and retaliatory—
consider worthier.

Turner v. Broadcasting Systems, Inc. v. F.C.C.,

512 U.S. 622 (1994), which the States pervasively cite,
does nothing to undermine that conclusion. In
Turner, this Court identified an effectively sui generis
consideration supporting the imposition of must-carry
obligations in the cable television context: the fact
that “the physical connection between the television
set and the cable network gives the cable operator

at 254. But Texas and Florida have regulated—only and

directly—the editorial choices of private institutions in the
“business of expression.” City of Lakewood v. Plain Dealer Publ’g
Co., 486 U.S. 750, 761 (1988).
 23

bottleneck, or gatekeeper, control over” the

programming a subscriber can access. Id. at 656
(emphasis added). But Turner reiterated—as Tornillo
had already recognized—that mere market power (to
say nothing of the sort of inchoate authority over the
marketplace of ideas the States rely on here) cannot
justify the same intrusions. See id. On the contrary,
to invoke a speaker’s “size and success” in reaching an
audience as reason for fettering their expression
would turn the First Amendment on its head. Hurley,
515 U.S. at 577. Because the question of who has too
much, not enough, or just the right amount of power
to persuade is not one that back-of-the-envelope
economics can answer, this Court has made clear that
“the mere assertion of dysfunction or failure in a
speech market, without more,” cannot displace First
Amendment protections. Turner, 512 U.S. at 640.
The same is true here. And, it bears noting, the larger
the platform the state seeks to control, the greater will
be the state’s influence on public and political
discourse.

At base, Texas and Florida have invoked the

language of market concentration as loose camouflage
for their objection to what they perceive as the
platforms’ editorial viewpoint and for their sense that
the targeted platforms’ speech enjoys too much
influence in public life. The “chilling endpoint” of that
reasoning “is not difficult to foresee,” because nothing
in it would “stop a future [legislature] from
determining that the press is ‘too influential’” in the
same fashion. McConnell v. FEC, 540 U.S. 93, 283–
84 (2003) (Thomas, J., dissenting). This Court closed
the door to that hollow line of reasoning in Tornillo,
and it should remain shut.
 24

II. The First Amendment forbids disclosure

mandates that target the exercise of
editorial judgment.

In addition to the direct restrictions they

impose on editorial decisionmaking, the Texas and
Florida laws under review also “subject[] the editorial
process” to “official examination” in order to enforce
the States’ preferred vision of neutrality by other
means. Herbert, 441 U.S. at 174. Texas for its part
requires platforms to “explain the reason” content was
removed to the user affected, Tex. Bus. & Com.
Code § 120.103(a), while Florida mandates that users
impacted by content moderation be given a “thorough
rationale explaining the reason” for the platform’s
choice, as well as a “precise and thorough explanation
of how the social media platform became aware” of the
user’s expression, Fla. Stat. § 501.2041(3). But just as
it would not have been a defensible compromise to
force the Miami Herald to disclose why it rejected Pat
Tornillo’s submissions (as opposed to forcing it to
publish those submissions), the States cannot police
the editorial process indirectly by exacting the tax of
an explanation. To hold otherwise would create a
blueprint for states to circumvent Tornillo by
repackaging editorial fairness as consumer fairness—
at great cost to the editorial autonomy of not only the
platforms but other private institutions as well,
including the press.
 25

a. Compelling speakers to explain the

basis for their editorial judgment is
not, as the States argue, merely a
commercial disclosure subject to less
First Amendment scrutiny.

As this Court has explained, the “lodestars in

deciding what level of scrutiny to apply to a compelled
statement must be the nature of the speech taken as
a whole and the effect of the compelled statement
thereon.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
487 U.S. 781, 796 (1988). And while Texas and
Florida argue that the explanation mandates deserve
less First Amendment protection on the theory that—
like a drug label or a calorie count—they compel only
“factual and uncontroversial” commercial disclosures,
Zauderer v. Off. of Disciplinary Counsel of Sup. Ct. of
Ohio, 471 U.S. 626, 651 (1985), in reality their
regulations burden fully protected expression twice
over: first, by discouraging editorial decisions that
would require explanation, and second, by interfering
with the platforms’ freedom to articulate their
editorial practices on their own terms.

On each front, the statutes “trench upon an

area in which the importance of First Amendment
protections is at its zenith.” Wash. Post v. McManus,
944 F.3d 506, 513–14 (4th Cir. 2019) (citation
omitted). Consider first the chilling effect on editorial
decisionmaking. The explanation requirements
would have the inevitable effect of discouraging
platforms from removing content in the first place,
making removal “more expensive” than the States’
preferred laissez-faire approach “because compliance
costs attach to the former and not to the latter.” Id.
 26

at 516. Given the extraordinary volume of moderation

decisions the platforms make each day, the work of
providing the required explanations—standing
alone—would be so costly as to be unworkable. But
Florida’s statute ratchets up the risk even further,
providing for statutory, actual, and punitive damages
for each notice that a court finds insufficiently
thorough. See Fla. Stat. § 501.2041(6)(a). In each
case, the explanation requirements threaten to chill
dramatically decisions to curate user-generated
expression that are, as already discussed above, fully
protected by the First Amendment. Just as forcing a
book publisher to explain the grounds for its many
decisions to reject manuscripts from the slush pile
would punish editors for exercising appropriate
selectivity, so the States cannot compel the platforms
to explain their editorial choices.

Equally importantly, the explanation

mandates interfere with the platforms’ latitude to
articulate their own editorial standards—a freedom
that “lies at the core of publishing control” for both
new media and old. Newspaper Guild of Greater
Phila., Loc. 10 v. N.L.R.B., 636 F.2d 550, 560 (D.C.
Cir. 1980). Despite the States’ best efforts, that kind
of expression cannot be shoehorned into the more
permissive doctrinal category of commercial speech.
“Commercial speech” describes only “expression
related solely to the economic interests of the speaker
and its audience,” Cent. Hudson Gas & Elec. Corp. v.
Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980),
and no one thinks that newspapers voluntarily
publish their standards just to explain the terms on
which papers are sold, see Standards and Ethics, N.Y.
Times, https://perma.cc/793S-67V9 (last visited Sept.
 27

26, 2023). On the contrary, such disclosures serve a

range of important public and corporate ends—
expressing the publisher’s point of view as to what
amounts to good journalism, or helping readers form
their own views on the reliability of any given story.
See Newspaper Guild of Greater Phila., 636 F.2d at
560. In similar fashion, social media platforms’
policies are written to express their views about what
a healthy public conversation looks like, not just to
sign up the marginal user.

Representations about editorial judgment are,

for that matter, too subjective to “propose a
commercial transaction.” Pittsburgh Press Co. v.
Pittsburgh Comm’n on Hum. Rels., 413 U.S. 376, 385
(1973). News organizations often aspire to provide
coverage that is objective, for instance, but
“arguments about objectivity are endless,” Policies
and Standards, Wash. Post, https://perma.cc/Y76W-
5YNP (last visited Sept. 26, 2023), and transforming
every disagreement over its meaning into a consumer-
fraud suit would impose a crushing litigation burden
on the press. For much the same reason, federal
courts have routinely concluded that representations
about how reporting will be conducted cannot be
enforced through the law of fraud or contract without
running grave First Amendment risks. 4 And it is no
surprise, then, that lower courts have likewise found
platform moderation policies too aspirational or

4 See, e.g., Hay v. N.Y. Media LLC, No. 20-cv-6135, 2021

WL 2741653, at *3 (S.D.N.Y. July 1, 2021), aff’d, No. 21-1727,
2022 WL 710902 (2d Cir. Mar. 10, 2022); Veilleux v. Nat’l Broad.
Co., 206 F.3d 92, 121–23 (1st Cir. 2000); Desnick v. Am. Broad.
Cos., 44 F.3d 1345, 1354–55 (7th Cir. 1995).
 28

subjective to fit under rubrics like false advertising.

See, e.g., Murphy v. Twitter, Inc., 60 Cal. App. 5th 12,
41 (2021); Prager Univ. v. Google LLC, 951 F.3d 991,
999–1000 (9th Cir. 2020).

Expressions and choices of this kind are

inescapably shot through with subjective editorial
judgment; they cannot reasonably be compared to a
term-sheet or invitation to deal. Cf. Caraccioli v.
Facebook, Inc., 167 F. Supp. 3d 1056, 1064 (N.D. Cal.
2016), aff’d, 700 F. App’x 588 (9th Cir. 2017) (finding
platform community standards unenforceable in a
breach-of-contract action). Were it otherwise, any
reasonable disagreement about the best
interpretation of a speaker’s editorial standards
would be the seed of costly, chilling litigation—a
result that would undermine Tornillo’s safeguards for
editorial freedom well beyond this particular context.

b. Editorial judgments are neither

“factual” nor “uncontroversial.”

Even if representations about editorial

judgment could be squeezed into the category of
commercial speech, the States’ mandates would be
ineligible for the lenient standard that governs run-
of-the-mill product packaging because the speech they
require is anything but “factual and uncontroversial.”
471 U.S. at 651. On the contrary, to compel platforms
to explain why they rejected a user’s contribution
compels expression of an editorial point of view. Just
as there is no fact of the matter about which news is
and isn’t fit to print, deciding whether third-party
speech is “worthy of presentation” calls for subjective
 29

judgment in a way that no nutrition label does.

Hurley, 515 U.S. at 575.

In insisting otherwise, Texas and Florida

maintain that their explanation requirements—like
other consumer-disclosure measures—“enable users
to make an informed choice” about what the
platforms’ editorial perspective already is. Tex. Bus.
& Com. Code § 120.051(b). But that defense itself
raises grave constitutional difficulties. For one, it
would eviscerate Zauderer’s requirement that
compelled disclosures be limited to “purely factual”
material rather than “matters of opinion.” 471 U.S. at
651. Consumers might well be curious about for
whom a platform’s owner—or a newspaper’s—voted in
the last presidential election; that the answer to that
question can be objectively determined does not make
it the kind of ‘fact’ the government can compel a
speaker to disclose. See Am. Meat Inst. v. U.S. Dep’t
of Agric., 760 F.3d 18, 32 (D.C. Cir. 2014) (Kavanaugh,
J., concurring). The same is true of a newspaper’s
editorial standards, or a publishing house’s selection
guidelines: That their contents can be verified does
nothing to mitigate the reality that compelling their
disclosure would “force citizens to confess” their
opinion on what those journalistic standards or
publishing guidelines should be. W. Va. State Bd. of
Ed. v. Barnette, 319 U.S. 624, 642 (1943).

More fundamentally, though, the government

has no legitimate interest in exposing that a private
institution holds a particular editorial perspective.
Speakers are free to disclose and detail their editorial
judgments—or not. That choice is itself protected by
the First Amendment. Just as statutes that directly
 30

regulate editorial decisionmaking cannot survive

First Amendment review without “identifying an
interest going beyond abridgment of speech itself,”
Hurley, 515 U.S. at 577, this Court emphasized in
Herbert v. Lando that statutes “that subject[] the
editorial process” to “official examination merely to
satisfy curiosity or to serve some general end such as
the public interest . . . would not survive
constitutional scrutiny as the First Amendment is
presently construed,” 441 U.S. at 174. So too here:
Unlike a calorie count or drug label, the only interests
served by the States’ explanation mandates are either
insubstantial or unconstitutional.5

Reciting “informed choice” does nothing to cure

that defect. It is “plainly not enough for the
Government to say simply that it has a substantial
interest in giving consumers information,” because
that “circular formulation” would imply the validity of
any and all disclosure mandates. Am. Meat Inst., 760
F.3d at 31 (Kavanaugh J., concurring). But at no
point have the States articulated how, in their view,
users are currently impaired in their ability to make
an informed choice about whether to use the
platforms, and they cannot expect this Court to
“supplant the precise interests put forward by the
State with other suppositions.” Edenfield, 507 U.S. at
768; see also Nat’l Inst. of Fam. & Life Advocs. v.

5 Amici express no view on whether certain disclosure

mandates in the context of content moderation could be defended
on different grounds or a different record. But Texas and Florida
have not offered a permissible interest to justify the mandates
actually at issue, and their constitutionality cannot be supported
by the possible existence of other interests that the States have
not advanced. See Edenfield v. Fane, 507 U.S 761, 768 (1993).
 31

Becerra, 138 S. Ct. 2361, 2377 (2018) (noting, even

under Zauderer, that the government’s justification
must be “nonhypothetical”). Neither is there a
“history and tradition” of compelling disclosure of
editorial standards that would make the connection
intuitive. Am. Meat Inst., 760 F.3d at 31–32
(Kavanaugh, J., concurring). On the contrary, as this
Court noted in Herbert, standalone editorial
disclosure mandates are unheard of. 441 U.S. at 174.

The States’ silence is unsurprising because the

purpose of the mandates is plain: to search for
perceived ideological bias and prove the existence of
“a dangerous movement by social media companies to
silence conservative viewpoints and ideas.” Press
Release, Off. of the Tex. Governor, Governor Abbott
Signs Law Protecting Texans from Wrongful Social
Media Censorship (Sept. 9, 2021),
https://perma.cc/2EL2-8H9Q. But a mandate geared
towards that goal will fail constitutional scrutiny no
matter how much evidence of bias Texas and Florida
put forward, because “the concept that government
may restrict the speech of some elements of our
society in order to enhance the relative voice of others
is wholly foreign to the First Amendment.” Buckley,
424 U.S. at 48–49; see also Am. Meat Inst., 760 F.3d
at 32 (Kavanaugh, J., concurring) (noting that
compelled disclosure of “the political affiliation of a
business’s owners” would be invalid, notwithstanding
consumer interest in that information). At base, the
statutes’ explanation mandates—like their content
moderation restrictions—aim to steer “the exercise of
editorial control and judgment” toward the viewpoints
that Texas and Florida prefer. Tornillo, 418 U.S. at
258. The Constitution prohibits that objective.
 32

***

Fifty years ago, weighing the grave risks of

government interference with the exercise of editorial
discretion, this Court concluded that it had “yet to be
demonstrated how governmental regulation of this
crucial process can be exercised consistent with First
Amendment guarantees.” Tornillo, 418 U.S. at 258.
Florida and Texas have failed to make that
demonstration here. Amici urge the Court to reject
their challenge to Tornillo’s foundational rule and
reaffirm its continuing vitality for the news media and
others who rely on the Constitution’s protections for
editorial freedoms.

CONCLUSION

For the foregoing reasons, amici respectfully

urge this Court to reverse the decision of the Fifth
Circuit and affirm the decision of the Eleventh
Circuit.

Respectfully submitted,

Bruce D. Brown
Counsel of Record
Katie Townsend
Gabe Rottman
Grayson Clary
Emily Hockett
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th St. NW,
Suite 1020
 33

Washington, D.C. 20005

bruce.brown@rcfp.org
(202) 795-9300

David D. Cole
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street, NW
Washington, DC 20005

December 5, 2023