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In January, Texas Attorney General Ken Paxton issuedcivil investigative demands(CIDs) to Twitter and other internet platforms requesting information about their content moderation practices pursuant to the offices authority under the state Deceptive Trade Practices-Consumer Protection Act. Twitter has since sued the attorney general to block enforcement of the CID issued to it. The Reporters Committee authored afriend-of-the-court briefin support of Twitter last week, joined by the Center for Democracy and Technology, the Electronic Frontier Foundation, the Media Law Resource Center, and PEN America.

Paxton has been vocal about Twitters suspension of former President Trumps account. A day after Twitter did so, Paxtontweetedhe would fight the company with all Ive got. In apress releaseabout the CIDs, Paxton explicitly linked the demands to the discriminatory and unprecedented step of removing and blocking President Donald Trump from online media platforms.

The CID issued to Twitter requests copies of terms of service, content moderation policies, all public statements made about content moderation and internal communications with or about the site Parler.

Twitter argues that the attorney generals actions are retaliatory and chill its content moderation practices, which are First Amendment-protected speech. The friend-of-the-court brief submitted by the Reporters Committee notes that government efforts to use regulatory schemes to investigate perceived bias in moderation practices would contravene the U.S. Supreme Courts rule inMiami Herald Publishing Company v. Tornillo that governmental regulation of editorial control and judgment cannot be exercised consistent with First Amendment guarantees of a free press[.]

Tornillodealt with print media, but the Supreme Court has extended such protections to the internet as a communications medium. Much of public discourse today happens online, and public discourse needs breathing space for free debate to survive. Government interventions even in the name of viewpoint neutrality threaten to shape this debate in ways that suppress disfavored speech, the brief argues. Consequently, investigations like the attorney generals may undermine the protections established by the Supreme Court inTornillo.

The brief notes that even non-retaliatory regulatory actions can burden the free flow of information to the public, such as taxes on paper and ink used to produce newspapers. When such regulatory schemes are used to make government actors arbiters of bias, that risk becomes even more pronounced. Paraphrasing the Supreme Courts words inTornillo, responsible moderation may be a desirable goal, but it cannot be achieved through government mandate.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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RCFP urges court to order Texas AG to stop investigating Twitter - Reporters Committee for Freedom of the Press