Notice & Comment

A Response to Brendan Carr and Nathan Simington on Texas HB20, by Thomas Berry

Next month, the Supreme Court will hear arguments in constitutional challenges to a pair of laws from Florida and Texas that would force social media sites to disseminate a wide range of third-party speech that they do not wish to carry. FCC Commissioners Brendan Carr and Nathan Simington have written a defense of Texas’s law, HB20, which would require certain covered sites to treat user content on a “viewpoint-neutral” basis. (Their defense is notably silent on the Florida law.) They argue that HB20 complies with the First Amendment under Supreme Court precedent, identifying four factors that in their view “can help inform whether a particular regulation is likely to be upheld or invalidated.” The four factors they highlight are (1) market power, (2) individualized editorial decisions, (3) likelihood of a false appearance of endorsement, and (4) the content-neutrality of the provision. They argue that each of these four factors points toward upholding the Texas law.

But Carr and Simington’s analysis of each of these four factors is flawed. While they aim to show that HB20 is analogous to a cable “must-carry” provision that the Supreme Court has upheld, HB20 is actually much closer to a newspaper “right-of-reply” statute that the Supreme Court has struck down. To show why, I will address the four factors that they do, in the same order.

First, Carr and Simington emphasize “the market power of a regulated entity and its centrality to civic engagement.” They rely primarily on Turner Broadcasting System v. FCC (Turner I).[1] That case concerned provisions of a 1992 federal law that required “cable television systems to devote a portion of their channels to the transmission of local broadcast television stations.” Id. at 626. These provisions were called the “must-carry” provisions.

Turner I did not decide the outcome of the case; it instead addressed the threshold question of what standard of First Amendment scrutiny to apply. The Court held that intermediate scrutiny applied. Id. at 661–62. This decision did not fully satisfy either the cable companies (who had argued for strict scrutiny) or the FCC (which had argued that the law did not implicate any form of heightened First Amendment scrutiny). 

Thus, reliance on Turner I is a double-edged sword. If HB20 is closely analogous to the must-carry provisions at issue in Turner I, then a winning argument must either explain why HB20 does not trigger intermediate scrutiny like the must-carry provisions did, or else explain why HB20 satisfies intermediate scrutiny. It’s not entirely clear which of these two positions Carr and Simington take, but there are some indications that they believe HB20 does trigger intermediate scrutiny. In the portion of their argument addressing content neutrality (discussed below), they again cite Turner I to note that “the Court applies intermediate scrutiny when challenged regulations are unrelated to the content of speech.”

If Carr and Simington do believe that HB20 triggers intermediate scrutiny, that would be a notable concession. The primary rationale of Judge Andrew Oldham’s 2–1 panel opinion upholding the law in the Fifth Circuit was that HB20 did not trigger any level of heightened scrutiny. Judge Oldham analyzed the law under intermediate scrutiny only toward the end of his opinion, as alternate grounds for upholding the law. And Texas, in its briefing to the Supreme Court, likewise primarily argues against any form of heightened scrutiny, again defending the law under intermediate scrutiny only as a last resort at the end of its brief.

In any event, Carr and Simington are more focused on arguing that HB20 does not trigger strict scrutiny than in drawing a clear line between rational basis and intermediate scrutiny. To do so they attempt to distinguish Miami Herald v. Tornillo,[2] in which the Court seemingly applied strict scrutiny (without explicitly articulating so) when it evaluated a Florida “right-of-reply” law that forced newspapers to print responses to critical editorials. 

In Turner I, the cable companies asked for the same strict scrutiny as was applied in Tornillo, but the Court distinguished the cable must-carry provisions from the newspaper right-of-reply law. One of the ways Turner I distinguished cable companies from newspapers was “the physical connection between the television set and the cable network,” which gave “the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber’s home.” Turner I, 512 U.S. at 656. This physical bottleneck meant that “a cable operator can prevent its subscribers from obtaining access to programming it chooses to exclude.” Id. By contrast, a “newspaper, no matter how secure its local monopoly, does not possess the power to obstruct readers’ access to other competing publications” and cannot “prevent other newspapers from being distributed to willing recipients in the same locale.” Id.

Carr and Simington contend that this “market power” factor supports treating social media sites more like cable companies than like newspapers. They maintain that social media platforms “are walled gardens inherently vulnerable to concentration” that “have shown remarkable immunity from new forms of competition.” “The barriers to competitive entry are significant,” they argue, “and dominant platforms lock in their users from viable alternatives, who in turn often have no realistic substitute to access content outside the walled garden.”

But as an empirical matter, this is an overly short-term view of the social media marketplace. Once-dominant platforms like MySpace have fallen by the wayside, and new platforms like TikTok have sprouted up and will continue to emerge in the future. As the Center for Growth and Opportunity noted in its amicus brief supporting NetChoice, the internet’s “history has been one scene after another of what economist Joseph Schumpeter called ‘creative destruction.’ … AOL, Netscape, Yahoo—all enjoyed their day in the sun but were elbowed aside by competitors offering more desirable products.” Id. at 21.

But setting aside empirical disputes and even assuming for the sake of argument that Carr and Simington’s description of the social media marketplace is accurate, that dominance is still much closer to the type of newspaper dominance that the Court has held not to justify government regulation. In Tornillo, the Court summarized the view of defenders of the right-of-reply law, who argued that “Chains of newspapers, national newspapers, national wire and news services, and one-newspaper towns, are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events.” Tornillo, 418 U.S. at 249. Much like the defenders of HB20, the defenders of the right-of-reply law argued that “[t]he result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion.” Id. at 250. The Court did not reject this empirical claim, but the Court struck down the law as an impermissible “intrusion into the function of editors” all the same. Id. at 258. 

To the extent market power can affect the standard of scrutiny, the question of market power is a question of whether a dominant entity possesses a physical bottleneck or instead merely a present-day de facto monopoly in a given speech marketplace. Turner I made clear that only the former presents an absolute barrier to entry by competing voices, and thus only the former can lower the level of scrutiny applied to a speech-carriage mandate. Like any newspaper in a given market, X (f.k.a. Twitter) has no power to stop users from accessing Bluesky or Threads. And Instagram has no power to stop users from accessing Pinterest or Tumblr. No matter how economically dominant a particular social media platform might be at a given moment, that dominance is, at most, akin to the Miami Herald in the Miami media market of the 1970s. And that dominance was not enough to save the right-of-reply law’s constitutionality.

The second factor that Carr and Simington identify is “the degree to which the regulated entity makes individualized decisions about the speech it carries—as opposed to operating in the main as a conduit for other peoples’ speech.” Carr and Simington rightly note that “a newspaper differentiates itself by prescreening, selecting, and curating the content that it disseminates, especially on public figures and social issues.” The Florida right-of-reply statute interfered with that editorial function, which was a key reason why the Court struck it down.

Carr and Simington allege that social media sites are distinguishable from newspapers because “dominant social media platforms do not normally control third-party content in the way that newspapers do” and “user-generated social media content is largely transmitted—nearly instantaneously—on a ‘continuous and unedited basis to subscribers.’” 

But this description of social media is inaccurate. First, it ignores that social media platforms aggressively moderate the speech they publish. As noted in NetChoice’s brief to the Supreme Court, “In a six-month period in 2018, ‘Facebook, Google, and Twitter took action on over 5 billion accounts or user submissions—including 3 billion cases of spam, 57 million cases of pornography, 17 million cases of content regarding child safety, and 12 million cases of extremism, hate speech, and terrorist speech.’” Id. at 6. And many of these editorial choices are made when content is submitted or shortly after. Quoting the Eleventh Circuit’s opinion blocking Florida’s social media law, NetChoice explained that “covered websites constantly engage in pre-publication editorial discretion, promulgating policies about acceptable expression and ‘screen[ing] all content for’ some kinds of ‘unacceptable material.’” Id. at 26. Even when that screening is conducted by an algorithm, “those algorithms implement human judgments about how to organize content according to their websites’ (human-authored) policies.” Id. at 27.

Further, Carr and Simington ignore the wide variations in moderation rules across platforms, which do in fact differentiate social media sites from each other in just the same way that editorial decisions differentiate newspapers. As the Electronic Frontier Foundation explained in its amicus brief supporting NetChoice, “users can choose from a variety of social media offerings, catering to a variety of interests, many of which reflect distinct editorial viewpoints, and exclude certain conflicting viewpoints.” Id. at 4. “Users readily perceive that different social media sites have different editorial philosophies,” with one prominent example being the “evolution of what was formerly Twitter to X under new ownership” and the accompanying change in its user base. Id. at 11.

Different online platforms have very different moderation rules and disseminate very different types of content as a result. This factor again points to strict scrutiny, because forcing every platform to use identical viewpoint-neutral moderation rules would be a profound infringement on the editorial freedom that has produced a range of social media experiences.

The third factor identified by Carr and Simington is whether “user speech is reasonably attributable to the companies that run the platforms.” They argue that “with posts being attributed to users and transmitted instantly without screening, readers have no reason to assume that the platform chose not to censor a particular post because the platform agreed with the message.”

To be sure, the Supreme Court’s opinion in PruneYard Shopping Center v. Robins[3] relied heavily on this factor. The Court held that a mandate requiring private shopping centers to host speakers did not inflict a First Amendment injury, largely based on the ability of the shopping center owners to disavow hosted speakers. Id. at 87.

But other Supreme Court cases have rightly recognized that merely being forced to host or financially support the speech of others is a First Amendment injury, even without the false appearance of endorsement. In Wooley v. Maynard,[4] the Court struck down a mandate forcing drivers to display a state motto on their license plates. The drivers had viable means to disavow any endorsement of that compelled speech (such as with a bumper sticker). But the Court nonetheless ruled for the drivers because the forced dissemination of a motto was itself a First Amendment violation, even in the absence of any appearance of endorsement. Id. at 717.

And in a long line of cases beginning with Abood v. Detroit Board of Education,[5] the Court has held that the First Amendment prohibits states from requiring someone “to contribute to the support of an ideological cause he may oppose.” Id. at 235. The First Amendment harm in Abood did not derive from any false appearance of endorsement, since “the general public is unlikely even to be aware of any particular individual’s financial support compelled by” the government. David B. Gaebler, First Amendment Protection Against Government Compelled Expression and Association.[6]

It is debatable whether social media sites would in fact have the means to effectively disavow all the speech that HB20 would compel them to carry. But either way, Wooley and Abood make clear that the false appearance of endorsement is not a prerequisite for a successful First Amendment claim. Being forced to carry, support, or subsidize speech that one opposes is itself a First Amendment injury, and HB20 would unquestionably inflict that injury on the covered sites.

Fourth and finally, Carr and Simington argue that “the Court applies intermediate scrutiny”—as opposed to strict scrutiny—“when challenged regulations are unrelated to the content of speech.” They argue that HB20 is content neutral because it bans any form of viewpoint discrimination and thus “operates to protect all viewpoints and aims to ensure there are more ideas or viewpoints in the public discourse.”

But in fact, HB20 is not content neutral. As NetChoice recounts in its brief, “HB20 excludes some content from its prohibition” on deplatforming, including content that “is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment” or that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.” Id. at 37. HB20 thus exempts some potentially illegal speech, but not all illegal speech. Further, “HB20 also excludes certain websites ‘that consist[] primarily of news, sports, entertainment, or other information or content that is not user generated.’” Id. at 8. 

Nor is HB20 speaker neutral. It applies only to websites with “more than 50 million active users in the United States in a calendar month.” Id. As the Supreme Court has explained, a law “tailor[ed] … so that it singles out a few members of the press presents such a potential for abuse that no interest” can justify it.[7] HB20 has been just so tailored, written so that it applies to Facebook but not to Parler, Gab, or Truth Social.

In sum, none of Carr and Simington’s arguments for subjecting HB20 to anything less than strict First Amendment scrutiny are persuasive. Social media sites do not own physical bottlenecks and do not have any means of preventing users from visiting a competitor’s site. Social media sites vary widely in their moderation rules, which define what speech they host and distinguish the various sites from each other. HB20 would force social media sites to disseminate and amplify speech against their will, which is a First Amendment injury whether or not users construe that amplification as an endorsement. And HB20 has content- and user-based exceptions that allow Texas to put its thumb on the scale of the speech marketplace. For all these reasons, the NetChoice cases are not the second coming of Turner; they are rather the Miami Herald v. Tornillo of the digital age. And the fate of both laws should be the same as the fate of the law in Tornillo: invalidation for being incompatible with the First Amendment.

Thomas Berry is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor-in-chief of the Cato Supreme Court Review. He was counsel of record for the Cato Institute’s amicus brief supporting NetChoice in both cases.

[1] 512 U.S. 622 (1994).

[2] 418 U.S. 241 (1974).

[3] 447 U.S. 74 (1980).

[4] 430 U.S. 705 (1977).

[5] 431 U.S. 209 (1977).

[6] 23 B.C. L. Rev. 995, 1019–20 (1982).

[7] Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 591–92 (1983).

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