A panel of federal circuit judges has upheld a Texas law that limits the ability of social media companies to moderate their platforms and forces them to carry speech they find objectionable in what certainly appears to be a complete violation and abandonment of First Amendment protections for private companies.
The law under review, H.B. 20, regulates large social media platforms (with more than 50 million users) and forbids them from censoring any user based on the viewpoint the user expresses, with some exceptions for child sexual exploitation, specific threats of violence, and any expression that is unlawful. In short, the law treats companies like Twitter and Facebook as "common carriers," ordering them against their will to serve as communication platforms for messages that they might find objectionable or that violate their community standards.
The law was challenged by NetChoice LLC, an association representing online platforms including Google, TikTok, and many others, arguing that H.B. 20 violates their First Amendment right to decide what sort of messages they wish to allow to be spread through their companies.
There is a robust list of court precedents that show that companies do, in fact, have such rights under the First Amendment, and the government's authority to force companies to transmit messages they disapprove of is very limited. In Florida, the 11th Circuit Court has stopped the enforcement of parts of S.B. 7072, which similarly attempts to force social media platforms to carry various messages. (Though in that case, it only covered candidates for office and links to media outlets.) A panel of judges determined that S.B. 7072 clearly violated the rights of the social media companies.
Not so in Texas. In May, the 5th Circuit Court of Appeals overturned a lower court injunction that determined that H.B. 20 was likely unconstitutional and blocked it. But the court didn't actually release an explanation or decision at that time. Plaintiffs went to the Supreme Court and got the temporary stay reinstated pending the 5th Circuit's actual decision.
That decision upholding the law was finally released on Friday, and it reads like a Twitter rant, which is perhaps unsurprising given the subject matter. Written by Circuit Judge Andy Oldham, it declares on its very first page, "Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say." This is something people should find troubling.
"We are disappointed that the Fifth Circuit's split decision undermines First Amendment protections and creates a circuit split with the unanimous decision of the Eleventh Circuit," said NetChoice Vice President and General Counsel Carl Szabo in a prepared statement. "We remain convinced that when the U.S. Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms, and apps."
Over at Techdirt, Mike Masnick describes it as "what appears to me to be the single dumbest court ruling I've seen in a long, long time." Masnick tees off on the bizarre logic from Oldham that H.B. 20 doesn't chill speech by controlling what social media platforms are allowed to do but instead prevents the censorship of speech:
Oldham continually focuses (incorrectly and incoherently) on the idea that editorial discretion is censorship. There's a reason that we've spent the last few years explaining how the two are wholly different—and part of it was to avoid people like Oldham getting confused. Apparently it didn't work.
Masnick notes this very troubling line from the ruling:
We reject the Platforms' efforts to reframe their censorship as speech. It is undisputed that the Platforms want to eliminate speech—not promote or protect it. And no amount of doctrinal gymnastics can turn the First Amendment's protections for free speech into protections for free censoring.
Judge Oldham's argument here is that the First Amendment simply doesn't protect businesses against compelled speech at all, Supreme Court precedents notwithstanding. Oldham doesn't seem to grasp that the way that online platforms moderate is a form of editorial control. He sees the case as unrelated to a previous ruling that a newspaper couldn't be forced to publish a response from a politician:
The Platforms are nothing like the newspaper in Miami Herald. Unlike newspapers, the Platforms exercise virtually no editorial control or judgment. The Platforms use algorithms to screen out certain obscene and spam-related content. And then virtually everything else is just posted to the Platform with zero editorial control or judgment.
Well, if that were true, Texas wouldn't have felt a need to pass H.B. 20 at all. Masnick notes that these platforms do exercise editorial control after the fact:
Moderating content after it's been posted is necessary given the sheer amount of posting volume these companies deal with. The alternative would be for every single comment or post to be moderated before it's posted. (Some websites used to do that. Some probably still do. Imagine trying to do that with Twitter.)
Because the 5th Circuit's opinion is so clearly at odds with the 11th Circuit's ruling, this dramatically increases the likelihood that the Supreme Court will now intervene.
Supreme Court Justices Samuel Alito and Clarence Thomas both want to look at the boundaries of social media platform regulation. Last year, Thomas wrote in a brief that the Supreme Court needs to consider how changes in the media landscape and the way people communicate online change who has the power to control who is and is not platformed. He wrote at the time:
Today's digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.
Part of the debate is whether the government can or should classify social media platforms as "common carriers," like phone companies or other utilities, that simply provide a service and shouldn't have control over how people use it (as long as it's being used legally). One of the Supreme Court cases that gets brought up frequently is PruneYard Shopping Center v. Robins from 1980. It's one of the rare cases where the Supreme Court allowed a government (in this case, the state of California) to force a private business (a shopping mall) to serve as a speech platform (high school students soliciting signatures for a petition).
None of this is to say that Alito and Thomas agree with Texas' or Florida's regulations. Alito said when he voted against intervening in the initial implementation of H.B. 20 that "[he has] not formed a definitive view on the novel legal questions that arise from Texas's decision to address the 'changing social and economic' conditions it perceives." But both he and Thomas do think it's time for the Supreme Court to weigh in on whether the government can treat these companies as common carriers, even though the companies themselves clearly don't want that. Given the lower court split, it looks like they may soon get the chance.