Friday, the Fifth Circuit handed a major win to Texas and, I think, to the American people when a three-judge panel unanimously struck down a lower court decision invalidating the law. The case is NetChoice vs. Paxton, and the decision is below.
If you want the TL;DR version, this is the crucial part of the opinion.
The First Amendment protects speech: It generally prevents the government from interfering with people’s speech or forcing them to speak. The Platforms argue that because they host and transmit speech, the First Amendment also gives them an unqualified license to invalidate laws that hinder them from censoring speech they don’t like. And they say that license entitles them to pre-enforcement facial relief against HB 20.
We reject the Platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee. The Platforms are not newspapers. Their censorship is not speech. They’re not entitled to pre-enforcement facial relief. And HB 20 is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way. The district court erred in concluding otherwise and abused its discretion by issuing a preliminary injunction. The preliminary injunction is VACATED, and this case is REMANDED for further proceedings consistent with this opinion.
This all started in September 2021 when the Texas Legislature passed a pretty commonsense bill. It says that any social media platform with over 50 million subscribers may not censor (and the Texas law defines “censor” so that the “only government can censor” crowd won’t have a hernia):
(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user’s expression or another person’s expression; or
(3) a user’s geographic location in this state or any part of this state.
The Fifth Circuit panel notes that under Supreme Court precedents, to make a successful First Amendment challenge, the plaintiff must show that the “challenged law either (a) compels the host to speak or (b) restricts the host’s own speech. The Platforms cannot make either showing.” The law allows the platform’s management to say anything it wants to say; what it prohibits is that platform, when operating under the Section 230 safe harbor provided in the Communications Decency Act, from silencing the viewpoints of users.
When the Fifth Circuit lays out the attack on the Texas law, it exposes the self-contradictory heads-I-win-tails-you-lose nature of their argument (italics are in the original).
Section 230 undercuts both of the Platforms’ arguments for holding that their censorship of users is protected speech. Recall that they rely on two key arguments: first, they suggest the user-submitted content they host is their speech; and second, they argue they are publishers akin to a newspaper. Section 230, however, instructs courts not to treat the Platforms as “the publisher or speaker” of the user-submitted content they host. Id. § 230(c)(1). And those are the exact two categories the Platforms invoke to support their First Amendment argument. So if § 230(c)(1) is constitutional, how can a court recognize the Platforms as First-Amendment-protected speakers or publishers of the content they host?
The Platforms respond that they in fact are speakers and publishers, and Congress simply instructed courts to pretend they aren’t for purposes of publishing-related liability. Moreover, the legislature can’t define what constitutes “speech” under the First Amendment—otherwise, for example, it could abrogate Miami Herald by simply defining newspapers as “not publishers.” Because the legislature may not define what constitutes FirstAmendment-protected speech, the Platforms argue § 230 has no bearing on the constitutional questions in this case.
The opinion also supports Texas using “common carrier” doctrine to break social media censorship.
The common carrier doctrine is a body of common law dating back long before our Founding. It vests States with the power to impose nondiscrimination obligations on communication and transportation providers that hold themselves out to serve all members of the public without individualized bargaining. The Platforms are communications firms of tremendous public importance that hold themselves out to serve the public without individualized bargaining. And Section 7 of HB 20 imposes a basic nondiscrimination requirement that falls comfortably within the historical ambit of permissible common carrier regulation.
For this reason, to facially invalidate Texas’s nondiscrimination rule would be a remarkable derogation of core principles of federalism. American courts have recognized these principles since the Founding and only briefly abjured them to serve two unfortunate causes: imposing racial segregation and enforcing a discredited Lochner-era vision of property rights. Accepting the Platforms’ theory would represent the first time since those ignominious years that federal courts have prevented a State from requiring interstate transportation and communications firms to serve customers without discrimination. Given the firm rooting of common carrier regulation in our Nation’s constitutional tradition, any interpretation of the First Amendment that would make Section 7 facially unconstitutional would be highly incongruous. Common carrier doctrine thus reinforces our conclusion that Section 7 comports with the First Amendment.
I’ve long parted ways with much of the conservative punditocracy and opinion that claims that a private company can do whatever the hell it wants. That claim is specious and, in my view, ignores the multitude of ways in which federal law has circumscribed the ability of private companies to operate freely. We know for a fact that Facebook and Twitter worked hand-in-glove with the Biden White House to stomp out any dissent to the bizarre, counter-factual, and anti-science policies imposed by government to allegedly stop the spread of the Wuhan virus (Now That We Know the Federal Government Is Calling the Shots on Social Media Censorship, Conservatives Need to Wake Up). When corporations team up with government to prevent people from communicating on a social media platform, particularly a platform with a monopoly position and particularly on a subject of extreme importance, they have stopped being private companies and are de facto arms of the government. When these same platforms actively eavesdrop on what should be private conversations, they are definitely operating outside the bounds of business and government (Facebook Accused of Monitoring Private Communications by Conservatives).
Upping the ante, this panel pointedly dares the plaintiffs to appeal the case to the Supreme Court by spelling out how they differ from the Eleventh Circuit on the same issue.
We part ways with the Eleventh Circuit, however, on three key issues. Unlike the Eleventh Circuit, we (1) do not think the Supreme Court has recognized “editorial discretion” as an independent category of First Amendment-protected expression. And even if it had, we (2) disagree with the Eleventh Circuit’s conclusion that the Platforms’ censorship is akin to the “editorial judgment” that’s been mentioned in Supreme Court doctrine. Finally, we (3) disagree with the Eleventh Circuit’s conclusion that the common carrier doctrine does not support the constitutionality of imposing nondiscrimination obligations on the Platforms.
Back in May of this year, the case made a brief appearance at the Supreme Court in an emergency appeal reinstating a lower court injunction against Texas’s law. The decision to let the injunction stand was a 5-4 one. Alito, Gorsuch, Thomas, and Kagan were the four votes to allow the Texas law to go into effect. This non-typical lineup, and the close vote, means that contrary to what the “much private company” fluffers want to believe, there is a better than 50-50 chance that if the Supreme Court hears this case, the days of Facebook, Twitter, YouTube, etc., viewpoint moderation are over.