Case: NetChoice LLC v. Paxton

1:21-cv-00840 | U.S. District Court for the Western District of Texas

Filed Date: Sept. 22, 2021

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Case Summary

Two trade associations filed suit against Ken Paxton, the Attorney General of Texas, in the U.S. District Court for the Western District of Texas on September 22, 2021. Represented by private counsel, they challenged a Texas state law, H.B. 20, that placed restrictions on social media platforms with over 50 million active users in the United States within one calendar month. They targeted two sections: section 2, which implemented detailed disclosure and moderation requirements, and section 7, which made it unlawful for covered platforms to block, ban, or otherwise restrict users based on their “viewpoint.” Plaintiffs sought declaratory and injunctive relief to prevent the enforcement of H.B. 20’s sections 2 and 7. The case was assigned to Judge Robert Pitman.

Plaintiffs’ five claims were as follows.

The law violated platforms’ First Amendment right to editorial judgment as it both compelled expression and prohibited platforms’ direct expression. In addition, they argued the burdensome disclosure and moderation requirements were designed to chill speech for certain disfavored platforms.
The law should be voided for vagueness. Specifically, the statute's vaguely defined terms would permit arbitrary enforcement.
Various claims under 42 U.S.C. § 1983. In violation of the Commerce Clause, the law allowed Texas to regulate and penalize out-of-state commerce as most of the platforms’ traffic occurred outside of Texas. Under the Full Faith and Credit and Due Process Clause, a state can regulate transactions only if there’s “significant contact” with the state, which Plaintiffs’ argued Texas lacked.
The law should be preempted under the Supremacy Clause and 47 U.S.C. § 230 (which protects information content providers’ ability to moderate materials). Under section 230, Congress provided broad immunity to web-based service providers for all claims stemming from publication of third-party information.
In violation of the Fourteenth Amendment’s Equal Protection Clause, the law specifically and arbitrarily targeted certain platforms.

Plaintiffs moved for a preliminary injunction on October 1, 2021. Plaintiffs reiterated their allegations from the complaint. In addition, they stated that platforms’ inability to moderate would cause irreparable harm through inundation with abusive, offensive, and unsafe materials, ranging from hate speech to foreign-state propaganda. As a result, users, platforms, and advertisers alike would be harmed experientially and financially.

Texas moved to dismiss the case on October 14, 2021, for lack of jurisdiction. They argued the plaintiffs lacked associational and organizational standing because plaintiffs were non-profit organizations and not the actual social media platforms targeted by H.B. 20. Further, they claimed that the platforms “attempted to shield themselves from the burdens of challenging a law they do not like by getting their lobbying groups to do it for them.”

The court both granted plaintiffs’ preliminary injunction and denied Texas’ motion to dismiss on December 1, 2021. As to the preliminary injunction, the court found that the plaintiffs had demonstrated there would be an irreparable harm as “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” In addition, the court determined a likelihood of success on the merits based on precedent upholding various groups' First Amendment right to editorial discretion. However, none of the cases cited explicitly applied to social media platforms. As to the motion to dismiss, the court determined the plaintiffs had established the three elements for associational standing: the association members had standing, the interests at stake matched the organization’s purpose, and the suit did not require participation of individual association members. 573 F.Supp.3d 1092.

Shortly thereafter, Texas filed an interlocutory appeal with the Fifth Circuit on December 6, 2021, appealing both the preliminary injunction and the denial of the motion to dismiss. On the same day, Texas also moved to stay the preliminary injunction in the district court, arguing that the order was overbroad as it was “not limited to the least intrusive means” and “could have been far more narrowly tailored” rather than halting enforcement of the law entirely. The following day, on December 7, 2021, plaintiffs filed a motion with the district court to stay the case pending the appeal.

On December 9, 2022, Texas’ motion to stay the preliminary injunction was denied. Plaintiffs’ motion to stay the case was only granted in part as the court declined to preemptively agree to lift the stay should the Fifth Circuit or Supreme Court alter the preliminary injunction. 2021 WL 7081434.

The Fifth Circuit summarily granted Texas’s motion to stay the District Court’s preliminary injunction pending appeal on May 11, 2022. 2022 WL 1537249. However, the U.S. Supreme Court summarily vacated the Fifth Circuit’s stay of the preliminary injunction May 31, 2022. 142 S.Ct. 1715.

The Fifth Circuit issued an opinion on September 16, 2022. They vacated the preliminary injunction and remanded the case for further proceedings consistent with the opinion. First, the court held that platforms’ act of censoring speech based on user’s viewpoints was not protected speech and thus did not trigger First Amendment protections. Second, it held that H.B. 20 prohibiting censorship of speech did not violate platforms’ First Amendment right to editorial discretion. Platforms were likened to “indispensable conduits for transporting information” rather than newspapers, where the right to editorial discretion originally derived. Third, it found that H.B. 20 advanced Texas’s important interest in protecting the free exchange of ideas and information. Finally, the court held that platforms were not entitled to pre-enforcement facial relief against H.B. 20’s disclosure and moderation requirements. The court found plaintiffs’ arguments that the requirements were burdensome unpersuasive as they were based on “a small number of applications.” 49 F.4th 439.

The plaintiffs subsequently moved to stay issuance of the mandate for the Fifth Circuit’s decision pending decision on their forthcoming writ of certiorari to the United States Supreme Court. The Fifth Circuit granted the stay on October 12, 2022.

	Document
	Fifth Circuit Docket U. S. Court of Appeals for the Fifth Circuit	Oct. 12, 2022	Oct. 12, 2022 Docket
1 1:21-cv-00840	Complaint for Declaratory and Injunctive Relief	Sept. 22, 2021	Sept. 22, 2021 Complaint
51 1:21-cv-00840	Order	Dec. 1, 2021	Dec. 1, 2021 Order/Opinion
57 1:21-cv-00840 21-51178	Order	Dec. 9, 2021	Dec. 9, 2021 Order/Opinion
59 1:21-cv-00840	USCA Order U. S. Court of Appeals for the Fifth Circuit	May 11, 2022	May 11, 2022 Order/Opinion
21-00720	Opinion Netchoice v. Paxton Supreme Court of the United States	May 31, 2022	May 31, 2022 Order/Opinion
21-51178	Opinion U. S. Court of Appeals for the Fifth Circuit	Sept. 16, 2022	Sept. 16, 2022 Order/Opinion

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT ( Filing fee $ 402 receipt number 0542-15251569), filed by NetChoice LLC, Computer & Communications Industry Association. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet)(Disher, Todd) (Entered: 09/22/2021) 1 Exhibit A View on RECAP 2 Civil Cover Sheet View on PACER	Sept. 22, 2021	Sept. 22, 2021 Clearinghouse
2	REQUEST FOR ISSUANCE OF SUMMONS by Computer & Communications Industry Association, NetChoice LLC. (Disher, Todd) (Entered: 09/22/2021)	Sept. 22, 2021	Sept. 22, 2021 PACER
3	RULE 7 DISCLOSURE STATEMENT filed by NetChoice LLC. (Disher, Todd) (Entered: 09/22/2021)	Sept. 22, 2021	Sept. 22, 2021 RECAP
4	RULE 7 DISCLOSURE STATEMENT filed by Computer & Communications Industry Association. (Disher, Todd) (Entered: 09/22/2021)	Sept. 22, 2021	Sept. 22, 2021 PACER
5	Pro Hac Vice Letters mailed to Gabriela Gonzalez-Araiza, Steven P. Lehotsky, and Jonathan D. Urick re: non-admitted status. (cj) (Entered: 09/22/2021)	Sept. 22, 2021	Sept. 22, 2021 RECAP
6	Summons Issued as to Ken Paxton. (cj) (Entered: 09/22/2021)	Sept. 22, 2021	Sept. 22, 2021 PACER
	Case Assigned/Reassigned	Sept. 22, 2021	Sept. 22, 2021 PACER
	If ordered by the court, all referrals and consents in this case will be assigned to Magistrate Judge Hightower (cj)	Sept. 22, 2021	Sept. 22, 2021 PACER
	To be Referred to AU Mag Judge	Sept. 22, 2021	Sept. 22, 2021 PACER
	Case assigned to Judge Robert Pitman. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (cj)	Sept. 22, 2021	Sept. 22, 2021 PACER
7	SUMMONS Returned Executed by NetChoice LLC, Computer & Communications Industry Association. All Defendants. (Disher, Todd) (Entered: 09/23/2021)	Sept. 23, 2021	Sept. 23, 2021 RECAP
8	Unopposed MOTION for Leave to Exceed Page Limitation by Computer & Communications Industry Association, NetChoice LLC. (Attachments: # 1 Proposed Order Granting Leave, # 2 Brief re: Motion for Preliminary Injunction, # 3 Exhibit A to Mot. for PI, # 4 Exhibit B to Mot. for PI, # 5 Exhibit C to Mot. for PI, # 6 Exhibit D to Mot. for PI, # 7 Exhibit E to Mot. for PI, # 8 Exhibit F to Mot. for PI, # 9 Exhibit G to Mot. for PI)(Disher, Todd) (Entered: 09/30/2021)	Sept. 30, 2021	Sept. 30, 2021 PACER
9	MOTION to Appear Pro Hac Vice by Jeremy Evan Maltz on behalf of Steven P. Lehotsky ( Filing fee $ 100 receipt number 0542-15288326) by on behalf of Computer & Communications Industry Association, NetChoice LLC. (Maltz, Jeremy) (Entered: 10/01/2021)	Oct. 1, 2021	Oct. 1, 2021 RECAP
10	MOTION to Appear Pro Hac Vice by Jeremy Evan Maltz on behalf of Jonathan D. Urick ( Filing fee $ 100 receipt number 0542-15288351) by on behalf of Computer & Communications Industry Association, NetChoice LLC. (Maltz, Jeremy) (Entered: 10/01/2021)	Oct. 1, 2021	Oct. 1, 2021 PACER
11	MOTION to Appear Pro Hac Vice by Jeremy Evan Maltz on behalf of Gabriela Gonzalez Araiza ( Filing fee $ 100 receipt number 0542-15288571) by on behalf of Computer & Communications Industry Association, NetChoice LLC. (Maltz, Jeremy) (Entered: 10/01/2021)	Oct. 1, 2021	Oct. 1, 2021 PACER
12	MOTION for Preliminary Injunction by Computer & Communications Industry Association, NetChoice LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(dm) (Entered: 10/01/2021) 1 Exhibit A View on RECAP 2 Exhibit B View on RECAP 3 Exhibit C View on RECAP 4 Exhibit D View on RECAP 5 Exhibit E View on RECAP 6 Exhibit F View on RECAP 7 Exhibit G View on PACER	Oct. 1, 2021	Oct. 1, 2021 RECAP
	Order on Motion for Leave to File Excess Pages	Oct. 1, 2021	Oct. 1, 2021 PACER
	Text Order GRANTING 8 Unopposed Motion for Leave to File Excess Pages entered by Judge Robert Pitman. IT IS ORDERED that the Clerk of the Court shall file Plaintiffs' motion for preliminary injunction and accompanying exhibits. (This is a text-only entry generated by the court. There is no document associated with this entry.) (sh)	Oct. 1, 2021	Oct. 1, 2021 PACER
	Text Order GRANTING 10 Motion to Appear Pro Hac Vice by attorney Jonathan D. Urick. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Judge Robert Pitman. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jg)	Oct. 6, 2021	Oct. 6, 2021 PACER
	Text Order GRANTING 9 Motion to Appear Pro Hac Vice by attorney Steven P. Lehotsky. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Judge Robert Pitman. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jg)	Oct. 6, 2021	Oct. 6, 2021 PACER
	Text Order GRANTING 11 Motion to Appear Pro Hac Vice by attorney Gabriela Gonzalez Araiza. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. entered by Judge Robert Pitman. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jg)	Oct. 6, 2021	Oct. 6, 2021 PACER
	Order on Motion to Appear Pro Hac Vice	Oct. 6, 2021	Oct. 6, 2021 PACER
13	MOTION for Leave to File Amicus Brief by W. Reid Wittliff. by Chamber of Progress. (Attachments: # 1 Brief, # 2 Proposed Order)(Wittliff, William) (Entered: 10/07/2021) 1 Brief View on RECAP 2 Proposed Order View on RECAP	Oct. 7, 2021	Oct. 7, 2021 RECAP
14	MOTION for Leave to File Amicus Brief by Laura Lee Prather. by The Reporters Committee for Freedom of the Press, The American Civil Liberties Union, The Center for Democracy & Technology, The Media Law Resource Center, American Civil Liberties Union of Texas. (Attachments: # 1 Proposed Order, # 2 Brief of the The Reporters Committee for Freedom of the Press, The American Civil Liberties Union, The American Civil Liberties Union of Texas, The Center for Democracy and Technology and The Media Law Resource Center)(Prather, Laura) (Entered: 10/07/2021) 1 Proposed Order View on PACER 2 Brief of the The Reporters Committee for Freedom of the Press, The American Civi View on RECAP	Oct. 7, 2021	Oct. 7, 2021 RECAP
15	MOTION to Appear Pro Hac Vice by Jason A. Cairns on behalf of Corbin K. Barthold ( Filing fee $ 100 receipt number 0542-15314243) by on behalf of TechFreedom. (Cairns, Jason) (Entered: 10/08/2021)	Oct. 8, 2021	Oct. 8, 2021 PACER
16	MOTION for Leave to File Amicus Brief by Jason A. Cairns and Corbin K. Barthold. by TechFreedom. (Attachments: # 1 Proposed Order, # 2 Brief)(Cairns, Jason) (Entered: 10/08/2021)	Oct. 8, 2021	Oct. 8, 2021 PACER
17	MOTION to Appear Pro Hac Vice by Thomas S. Leatherbury on behalf of David Greene ( Filing fee $ 100 receipt number 0542-15315772) by on behalf of Electronic Frontier Foundation. (Attachments: # 1 Proposed Order)(Leatherbury, Thomas) (Entered: 10/08/2021)	Oct. 8, 2021	Oct. 8, 2021 PACER
18	MOTION to Appear Pro Hac Vice by Thomas S. Leatherbury on behalf of Mukund Rathi ( Filing fee $ 100 receipt number 0542-15315829) by on behalf of Electronic Frontier Foundation. (Attachments: # 1 Proposed Order)(Leatherbury, Thomas) (Entered: 10/08/2021)	Oct. 8, 2021	Oct. 8, 2021 PACER
19	MOTION for Leave to File Amicus Brief by Thomas S. Leatherbury. by Electronic Frontier Foundation. (Attachments: # 1 Proposed Order, # 2 Brief of Amicus Curiae Electronic Frontier Foundation in Support of Plaintiffs' Motion for Preliminary Injunction)(Leatherbury, Thomas) (Entered: 10/08/2021) 1 Proposed Order View on PACER 2 Brief of Amicus Curiae Electronic Frontier Foundation in Support of Plaintiffs&# View on RECAP	Oct. 8, 2021	Oct. 8, 2021 RECAP
20	Opposed MOTION to Expedite Discovery by Ken Paxton. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Corbello, Courtney) (Entered: 10/11/2021) 1 Exhibit A View on PACER 2 Exhibit B View on PACER 3 Exhibit C View on PACER 4 Proposed Order View on PACER	Oct. 11, 2021	Oct. 11, 2021 RECAP
21	Opposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Preliminary Injunction by Ken Paxton. (Attachments: # 1 Proposed Order)(Corbello, Courtney) (Entered: 10/11/2021)	Oct. 11, 2021	Oct. 11, 2021 PACER
22	Response in Opposition to Motion, filed by Computer & Communications Industry Association, NetChoice LLC, re 21 Opposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Preliminary Injunction filed by Defendant Ken Paxton, 20 Opposed MOTION to Expedite Discovery filed by Defendant Ken Paxton (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Disher, Todd) (Entered: 10/13/2021) 1 Exhibit A View on RECAP 2 Proposed Order View on RECAP	Oct. 13, 2021	Oct. 13, 2021 RECAP
23	MOTION to Dismiss for Lack of Jurisdiction by Ken Paxton. (Corbello, Courtney) (Entered: 10/14/2021)	Oct. 14, 2021	Oct. 14, 2021 RECAP
24	REPLY to Response to Motion, filed by Ken Paxton, re 20 Opposed MOTION to Expedite Discovery filed by Defendant Ken Paxton (Corbello, Courtney) (Entered: 10/14/2021)	Oct. 14, 2021	Oct. 14, 2021 PACER
	Text Order GRANTING IN PART AND DENYING IN PART 21 Motion for Extension of Time to File Response/Reply entered by Judge Robert Pitman. In light of Plaintiffs' lack of opposition to a seven-day extension, IT IS ORDERED that Defendant shall file a response to the preliminary injunction motion on or before October 22, 2021. The Court intends to expeditiously rule on Defendant's motion for expedited discovery, the outcome of which may impact Defendant's response deadline. (This is a text-only entry generated by the court. There is no document associated with this entry.) (sh)	Oct. 15, 2021	Oct. 15, 2021 PACER
	Order on Motion for Extension of Time to File Response/Reply	Oct. 15, 2021	Oct. 15, 2021 PACER
25	ORDER GRANTING IN PART AND DENYING IN PART 20 Opposed MOTION to Expedite Discovery Signed by Judge Robert Pitman. (cc3) (Entered: 10/22/2021)	Oct. 22, 2021	Oct. 22, 2021 RECAP
26	ORDER SETTING PRELIMINARY INJUNCTION HEARING for 12/10/2021 at 09:00 AM before Judge Robert Pitman. Signed by Judge Robert Pitman. (cc3) (Entered: 10/26/2021)	Oct. 26, 2021	Oct. 26, 2021 RECAP
27	ORDER RESETTING PRELIMINARY INJUNCTION HEARING for 11/29/2021 at 09:00 AM before Judge Robert Pitman Signed by Judge Robert Pitman. (cc3) (Entered: 10/28/2021)	Oct. 28, 2021	Oct. 28, 2021 RECAP
28	Response in Opposition to Motion, filed by Computer & Communications Industry Association, NetChoice LLC, re 23 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Ken Paxton (Disher, Todd) (Entered: 10/28/2021)	Oct. 28, 2021	Oct. 28, 2021 RECAP

Case: NetChoice LLC v. Paxton

1:21-cv-00840 | U.S. District Court for the Western District of Texas

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