AG, Fla. v. NetChoice petition for cert

The AG, Fla. v. NetChoice petition for cert in the U.S. Supreme Court on the issue of Big Tech censorship was filed on September 21, 2022, with responses due by October 24, 2022, in Sup. Ct. No. 22-277. This petition seeks to overturn the Eleventh Circuit decision in NetChoice v. AG, Fla.

This petition relies on these 16 cases, 13 of which are by the U.S. Supreme Court and the other three by New Hampshire (1837), the Fifth Circuit (the recent NetChoice v. Paxton decision), and the D.C. Circuit:

• Biden v. Knight First Amend. Inst. at Columbia Univ., 141 S. Ct. 1220 (2021) (Thomas, J., concurring)
• City of Austin v. Reagan Nat’l Advert. of Austin, 142 S. Ct. 1464 (2022)
• Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021)
• German All. Ins. v. Lewis, 233 U.S. 389 (1914)
• Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557 (1995)
• Markham v. Brown, 8 N.H. 523 (1837)
• Mia. Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974)
• NetChoice v. Paxton, 142 S. Ct. 1715 (2022) (mere application, but Justice Sam Alito's dissent emphasized the importance)
• NetChoice v. Paxton, --- F. 4th ---, No. 21-51178, 2022 WL 4285917 (5th Cir. Sept. 16, 2022)
• Packingham v. North Carolina, 137 S. Ct. 1730 (2017)
• Primrose v. W. Union Tel., 154 U.S. 1 (1894)
• PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980)
• Rumsfeld v. Forum for Acad. & Institutional Rights, 547 U.S. 47 (2006)
• Tah v. Glob. Witness Publ’g, 991 F.3d 231 (D.C. Cir. 2021)
• Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622 (1994)
• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)

Its argument makes these points, in 20 pages (8-28):

I. THIS CASE PRESENTS ISSUES OF EXCEPTIONAL IMPORTANCE (pp. 8-13)

II. THE DECISION BELOW CONFLICTS WITH THE FIFTH CIRCUIT’S DECISION IN NETCHOICE V. PAXTON - 5 pages, (pp. 13-18)

III.THE DECISION BELOW IS WRONG (pp. 18-27, identifying 5 categories of errors)

IV. THIS CASE PRESENTS AN IDEAL VEHICLE FOR CONSIDERING THESE QUESTIONS (less than a page, pp. 27-28)

Public/private distinction

The Eleventh Circuit emphasized 25 times that social media are private entities, and therefore supposedly outside the reach of the First Amendment which applies against public entities. If social media platforms are viewed as purely private property, then the owners would presumably be able to censor on their own property however they like.

This petition tries to overcome that in four ways:

1. Citing Packingham and a Department of Justice memo for the proposition that social media have become public town squares, which “provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Packingham, 137 S. Ct. at 1737.

2. Quoting several law review articles to emphasize how big this problem has grown, as follows:

“

“Troubling, therefore, has been a series of recent moves by Big Tech that has, intentionally or not, undermined Americans’ ability to communicate their ideas.” Gregory M. Dickinson, Big Tech’s Tightening Grip on Internet Speech, 55 Ind. L. Rev. 101, 109 (2022). Today, “users of social media are subject to a regime of private censorship that was only recently unimaginable.” Kyle Langvardt, Regulating Online Content Moderation, 106 Geo. L.J. 1353, 1355 (2018). In this censorship regime, “social media giants’ using their enormous power to suppress particular views is reality.” Eugene Volokh, Treating Social Media Platforms Like Common Carriers?, 1 J. Free Speech L. 377, 394 (2021).

”

3. Quoting the Fifth Circuit decision in NetChoice v. Paxton, as expressed by Judge Oldham for himself, that the Eleventh Circuit’s analysis is “inconsistent with the common-law history and tradition” of common carriers. At common law, “private enterprises providing essential public services must serve the public, do so without discrimination, and charge a reasonable rate.” Telegraph and telephone services were included in common carrier doctrine, and so should social media.

4. Quoting Justice Thomas's solitary concurrence in Knight First Amend. Inst., 141 S. Ct. at 1222: the Supreme Court “long ago suggested that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when ‘a business, by circumstances and its nature, ... rise[s] from private to be of public concern.’” Id. at 1223 (quoting German All. Ins. Co. v. Lewis, 233 U.S. 389, 411 (1914)).