TikTok Inc., et al. v. State of Texas

Texas sued TikTok under the Texas Deceptive Trade Practices Act alleging that TikTok failed to create and provide parents and guardians with the tools required to protect minors’ privacy and safety as Texas claims is required by the Securing Children Online through Parental Empowerment (SCOPE) Act. TikTok moved for summary judgment on several grounds, including that the State’s claims impermissibly burden constitutionally protected speech. The trial court denied the motion.

TikTok appealed under a Texas law that guarantees an immediate appeal when a court denies a summary judgment motion brought by “a member of the electronic or print media” raising free speech or free press defenses under the U.S. or Texas Constitutions. Texas moved to dismiss the appeal, arguing the law protects only the news media — professional outlets and experienced journalists — even though the statute contains no such limitation.

FIRE joined NetChoice, the Computer & Communications Industry Association, and the Electronic Frontier Foundation in filing an amicus brief urging the appeals court to deny Texas’s motion. The brief argues the First Amendment’s press protections have never been reserved for only the institutional press. As the Supreme Court held in 1938, the liberty of the press “comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin, 303 U.S. 444, 452 (1938). As the brief explains, the Supreme Court has recognized that social media are for many people “the principal sources for knowing current events” and for “exploring the vast realms of human thought and knowledge.” Packingham v. North Carolina, 582 U.S. 98, 107 (2017). The brief also warns that reading a news-media requirement into the statute would force courts to decide who counts as a “real” journalist – the kind of speaker discrimination the First Amendment forbids – and would favor established outlets over citizen journalists and journalistic creators.