Fla., Texas Content Moderation Laws Carry ‘First Amendment Weight,’ Says Discord

Discord users “are in control of their experience, without news feeds or algorithms to drive engagement,” said the brief. Discord users “decide with whom they interact and what communities and conversations they join,” it said. But the Florida and Texas laws “themselves are broad enough to likely sweep Discord into their purview,” it said.

Discord emphasizes real-time interaction and connection among friends, “and encourages creativity and community around shared interests,” said the brief. Its approach to content moderation “is aligned with this goal,” it said.

Discord invests both in "centralized moderation" and in tools "for groups using the service to manage and organize themselves,” said the brief. Many groups that gather on Discord also maintain specific guidelines that apply only to their own group and “are designed to protect the integrity of the particular discussion that the group intends to pursue,” it said.

The “central purpose” of Discord’s moderation policies “is to protect the association rights of Discord’s communities,” said the brief. That includes the ability of those communities to come together around their shared interests “and to be able to exclude speech that is hostile to a particular community’s purpose,” it said. While the Texas and Florida laws undoubtedly threaten Discord’s First Amendment rights, “they also undermine the association rights of Discord communities,” it said.

By requiring those communities to host speech that’s “inconsistent with and even hostile” to a particular community’s purpose, the Florida and Texas laws “are harmful to Discord as a community of communities,” said the brief. But more important, “invading the association rights” of Discord communities, as the Texas and Florida laws would do, “will inevitably impair the ability of those communities to organize, and to speak,” it said.

Florida and Texas, in an attempt to limit large platforms’ moderation activities, enacted laws that harm those platforms’ "own speech and associational interests," said the brief. But the laws also harm "the speech and association interests of communities of citizens online,” it said. Discord’s individual communities “often lack the resources, experience, and scale to moderate on their own,” it said.

But if every act of moderation attributable to Discord “risks expensive litigation and potentially six-figure damages, Discord will be unable to assist these communities in protecting themselves from harmful or irrelevant content,” said the brief. That will cause the communities themselves “to deteriorate, hampering the important associational benefits they offer, much in the way that withdrawing garbage collection from a community causes it to deteriorate,” it said.

Where the garbage is hateful, dangerous or even “merely unwanted content,” that harm has “First Amendment weight,” said the brief. A proliferation of that content, forced by the government on the social media platforms, as the Florida and Texas statutes would do, “drives off communities, and community members,” it said. Those communities and members would otherwise “be strengthening their associations through interaction and discussion within mutually agreed-upon boundaries,” it said.