Texas and Florida laws are unconstitutional and threaten volunteer editors’ right to edit Wikipedia

The Wikimedia Foundation has filed a “friend-of-the-court” brief with the US Supreme Court supporting challenges to laws in Texas and Florida that threaten the right to freedom of expression as enshrined under the First Amendment of the US Constitution. Our brief aims to inform the Supreme Court about how those laws also threaten community-governed free and open knowledge projects like Wikipedia.

In 2021, the state legislatures of Texas and Florida, alleging “censorship” by large social media platforms of some of their citizens’ viewpoints, passed laws limiting how internet platforms can engage in content moderation. NetChoice, a trade organization representing many of the largest multinational technology firms, and the Computer and Communications Industry Association (CCIA) promptly sued the attorneys general of both states, citing violations of the First Amendment and other elements of the US Constitution. 

As the US Supreme Court prepares to consider this contentious pair of cases in 2024, the Wikimedia Foundation is proud to have filed a “friend-of-the-court” or amicus curiae brief calling on the Court to strike down both laws.

An amicus brief is a document filed by individuals or organizations who aren’t part of a lawsuit but who have an interest in the outcome of the case and want to educate the court about their concerns. We believe that the US state laws and judicial precedents at issue in the NetChoice cases present a significant risk to the Foundation’s ability to host Wikipedia and other Wikimedia projects. These laws and precedents also jeopardize the ability of volunteer editors to continue governing projects like Wikipedia as they have for more than twenty years. We hope that our brief helps the Supreme Court understand the threats posed by Texas House Bill 20 and Florida Senate Bill 7072 to community-governed free and open knowledge projects like Wikipedia. We encourage the Court to rule in favor of NetChoice in order to protect Wikipedia and its community governance model in service of neutral, well-sourced free knowledge. 

Why the cases are relevant to Wikimedia projects 

The Supreme Court combined the cases against the Texas and Florida laws because both raise the same question: whether a state can prohibit website operators from removing the speech and content of users or banning users based on the “viewpoint” of the users in question. In addition to this limitation on content moderation, both laws have substantial compliance obligations, which require that social media platforms explain each and every single action taken to delete content or ban users. Proponents of these laws claim that they only apply to the largest companies, but since they are written with vague and differing definitions, we are concerned that they could also apply to Wikipedia and many other specialized websites. We are also concerned that if these laws are allowed to remain in place, they will set a precedent that will allow even stricter restriction of Wikipedia in the future. 

What we explained in our filing

The Foundation’s filing makes two primary arguments on behalf of the Wikimedia projects and the volunteers who govern them. First, we argue that the laws are too vague and broadly written. This vagueness creates legal risks for Wikipedia volunteer editors and makes the laws unconstitutional. Second, we argue that, even if the laws were more clearly written, forcing websites or the companies and communities that manage them to host speech they don’t want would violate their freedom of expression, which is protected by the First Amendment of the US Constitution. 

The Wikimedia Foundation believes both of these laws are unconstitutional under the First Amendment of the US Constitution because they would violate the rights of both the Foundation and the community of volunteers who create Wikipedia

We believe these laws are unconstitutionally vague (as we will explain further below). In addition, even if the laws were clear, we would still see major problems with them under the First Amendment of the US Constitution. The First Amendment prohibits the government from restricting the free expression of its citizens.

In particular, both of these laws fundamentally misunderstand the protections offered by the First Amendment (and, more globally, protections offered to freedom of expression under international human rights law). These protections not only protect people in the US when they speak, but they also stop the government from forcing people to speak. Just as the government cannot target people for their views, it cannot force them to express a viewpoint that they do not support. Instead, free expression includes the choice to remain silent, to say some things but not other things, and to associate or not associate yourself with the speech of others.

These protections are crucial because they cover a wide range of issues, well beyond allowing political debate. A core viewpoint of Wikipedia, for example, is that only notable topics should have articles. The volunteers who edit Wikipedia decide what is and is not notable, whether that’s deciding which Pokemon deserve their own article or deciding not to write about a Texas rock band because they don’t have enough verifiable sources. The viewpoint of the Foundation, as a website host, is that Wikipedia content is of the highest quality when the community makes decisions about content. We also believe that Wikipedia’s quality benefits because the Foundation is not forced to intervene in decisions by volunteer editors about what information should appear on Wikipedia. Furthermore, the Foundation has no particular expertise in identifying which sources are reliable for which topics, whereas the volunteer communities have spent decades figuring it out and establishing guidelines.

We believe that it is extremely important that the Supreme Court hears from the Foundation on these points. The Texas and Florida laws, as well as some of the lower court judges who ruled on them, apparently believe that all large websites should allow anyone to post about anything they wish. Wikipedia, however, by its very nature, is a limited scope project, and this limitation should be protected by the US Constitution. Wikipedia is neither a guidebook nor a place to collect recipes, nor is it a blog nor a collection of people’s personal thoughts and opinions. The government should not be able to force Wikipedia volunteer editors to let the website become an opinion board or rumor mill.

Wikipedia volunteers must be able to maintain the project’s scope as an encyclopedia, to restrict the type of information documented there, and to require that the content have certain qualities like verifiable sources and neutral tone. Without the discretion to make these decisions, Wikipedia would be overwhelmed with irrelevant information that would take away from the purpose of the project. The same is equally true for other Wikimedia projects like Wikisource or Wikimedia Commons: Each of these websites accepts a limited set of content and rejects things that are out of scope, in effect discriminating against the viewpoint of people who want to contribute out-of-scope content.

We hope that courts, as well as legislators, recognize that websites and the people who manage them need and should be able to decide what kinds of content are appropriate for their purposes, and also to take action to remove content that does not fit.

The Wikimedia Foundation believes that these laws also violate the US Constitution because they are vague and poorly written 

Under the US Constitution, laws that affect constitutional rights like freedom of expression need to be carefully written. It should be clear who must comply with the law and what they are expected to do. Furthermore, the law should be focused on fixing a specific problem without affecting other behavior or activity.

However, the laws passed by Texas and Florida do not meet this standard. Instead, they define their terms poorly, making it unclear who is subject to the law and what they must do. For example, the state of Texas has argued that only the three largest social media companies—i.e., YouTube, Meta, and X (at the time, Twitter)—would be affected by the law.

Despite this assertion, the law’s definition of “social media platform” is extremely broad, potentially covering any websites or services that allow people to exchange information with each other over the internet. In theory, the laws only apply to “social media platforms” with a large number of users (50 million users per month), but the term “user” is not defined. If “users” include people who visit a website, then the law could apply to Wikipedia as well as many other specialized websites that were neither meant to be nor are social media platforms.

In addition to being vague in scope, the laws are also unclear in their application. The laws seem to have been drafted with a top-down, centralized content moderation model in mind, like that used by for-profit companies such as Meta or X. For this reason, it is not clear how these laws would apply to a community-led content moderation model like Wikipedia, where most editorial decisions are made by communities of volunteer editors, who in turn elect administrators and other platform functionaries who act according to their own established guidelines and decision-making processes.

It is possible, on the one hand, that the law does not apply to actions taken by volunteer communities. On the other hand, however, under the vague terms of the Texas and Florida laws, it is also possible that the administrative actions and edits made by volunteers to the work of other volunteers could all be considered “content moderation.” If that were found to be the case, the laws could be used to try and force the Foundation to reverse decisions made by community volunteers and/or administrators. Relatedly, the laws could be used to bring legal claims against volunteers and/or administrators for their editorial decisions and potentially undo them if their explanations are not adequate or consistent enough.

The vagueness of the Texas and Florida laws creates unnecessary uncertainty for the Wikimedia projects and the volunteers who manage them. We believe these laws are, therefore, unconstitutional.

Conclusions

The Texas and Florida social media laws pose an unacceptable risk to free and open knowledge projects like Wikipedia. Attempting to force “viewpoint neutrality” might seem reasonable on the surface, but could actually make it nearly impossible to host most websites that focus on a limited scope project. This includes Wikipedia’s choice to limit its content to notable topics with reliable sources that are neutrally written.

Vague, overly broad laws intended to shape how online platforms can or cannot moderate content present a risk of covering far more than legislators intended. As a consequence, such laws can be abused to force websites like the Wikimedia projects—and even individual users—to allow information that not only violates their own content and speech guidelines, but which also runs counter to the website’s very purpose. Forcing website hosts and communities to do so violates the US Constitution and the right of all Wikipedia volunteers to their own freedom of expression.

We have filed our amicus brief to explain these issues to the Supreme Court. We are hopeful that the Justices will rule that the laws are unconstitutional. By striking down these two laws, the Court will establish a precedent that protects the Wikimedia projects and many other similar websites from harm.

If you’d like to read and learn more about these cases, including filings from other amici, NetChoice, and the states of Texas and Florida, you can do so at the SCOTUSblog website. We will continue to update you as new information concerning the cases becomes available. For email updates from the Foundation on public policy topics, sign up for our quarterly newsletter.

Great thanks to our friends at Cooley LLP for their pro bono representation in this matter.