Fifth Circuit Panel Lifts Stay of the Texas Social Media Law

There's no opinion yet, and I don't know when one would be forthcoming, so it's hard to figure out what exactly will happen; but I thought I'd pass along the news. The law itself is here.

Netchoice: CA5 has stayed the district court's preliminary injunction in the NetChoice case (i.e., reviving for now Texas's strange anti-bias law, HB20.

The panel is not unanimous we are told, but not who dissents (I think I can guess, but who knows). pic.twitter.com/Fwm0ozYS0J

— Raffi Melkonian (@RMFifthCircuit) May 11, 2022

Comments

[SRG]

I'm more surprised that that crook is still allowed to act as AG.

[Dave_A]

He insults/attacks the 'right' people and apparently that's what matters these days...

The Constitution obviously doesn't - doubly so in this case (1A and a state trying to regulate interstate commerce).

[Jason Cavanaugh]

Seems to me that most of the 5th Circuit judges should be excised from the judiciary.

The law is a flagrant violation of the First Amendment rights of companies.

[ah....Clem]

Well, yes, of course it's a flagrant violation of the First Amendment.

That's why the two judges didn't bother to write an opinion - they don't have a leg to stand on given current precedent - the more they wrote, the more misinformed and ignorant they'd sound, so better to just zip it. And it seems to be quite haughty to issue a "per curium" ruling that has a dissent. If this were any other circuit I'd be hoping for an en banc reversal, but won't hold my breath here.

At this point, the ball seems to be in the court of the social media services, and if they decide they can't legally do business in Texas their option seems to be fairly clear.

[Jason Cavanaugh]

Notably, the law also prohibits platforms from simply not doing business with users in Texas.

Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media
platform may not censor a user, a user's expression, or a user's
ability to receive the expression of another person based on:
(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.
(b) This section applies regardless of whether the viewpoint is expressed on a social media platform or through any other medium.

Paxton and his ilk have to go.

[Greg J]

You're impressively stupid, as well as a fascist

3: Blocks them from censorign people just because they live in Texas

The company can refuse to do any business in the State of Texas. What it can't do is do "some" business in the State of Texas

Gosh, the horror! Lefties who want to do business in Texas aren't allowed to censor views they don't like!

Oh, the horror!

[Jason Cavanaugh]

If I'm 'impressively stupid,' then that would make you simply retarded.

The law clearly states (but not clearly enough for you to comprehend), that they may not censor a "user's ability to receive the expression of another person" based on "a user's geographic location in this state."

HTML does not allow for crayons, but I'll do my best to explain this to you:

The sites in question may not BLOCK User A from interacting with their site (and therefore receiving someone else's expression), based on User A being geographically located in Texas.

So no, according the law, they may not simply refuse to do business with users in Texas to avoid the consequences of this idiotic and unconstitutional law.

Now you may leave and go fuck yourself.

[Dave_A]

At this point, the relevant companies are best advised to push this as far as they can & hope for a commerce-clause resolution that renders them completely immune to state regulation.

The administration of a social-media service can be argued to take place in whatever state the *server* being used is located... Which is separate from wherever the social-media company's production IT staff & content moderators are working... And very often not where the user logs in from.

It is vanishingly rare for the user, the server, and the administrative staff to be located in the same state.

Which clearly makes the regulation of social media exclusively a federal domain... And thus makes such regulation not-possible (yay gridlock), which is better for all of us...

[Krayt]

But nobody has problems threatening social media with loss of section 230 unless they censor harrassment, please start with the harrassing tweets if our political opponents right before an election.

For those of my fellow freedom lovers, you should be 100,000x more aghast at that than this. It's the reason we are in this situation in the first place.

[Sarcastr0]

Don't defend this nonsense with your whattaboutism just because you have a factually dodgy hobby horse you're het up about.

[ah....Clem]

Also, there are a lot of people (on both sides of the political spectrum) who do have a problem with threatening social media with loss of sec. 230.

And as far as how "aghast" we should be, this is an actual law actually passed and actually in effect whereas the sec 230 performative nonsense (again, sadly prevalent on both sides) is theoretical, at least for now.

[Greg J]

"Whataboutism" is what you claim to be attacking when your hypocrisy is being pointed out.

Like "we don't allow death threats / calls for harassment", unless they're being aimed at the honest SCOTUS justices.

I guess you do have to pretend that left wing hypocrisy is good, if you're going to try to defend out tech would-be overlords

[Sarcastr0]

You're also trying to change the subject. Krayt was not attacking hypocricy, he was literally saying 'don't talk about that, talk about THIS.'

You, on the other hand, are just strawmanning.

[Reallynotbob]

pshaw... Corporations only get 1A rights in the form of money to "speak" in elections or resist otherwise valid laws because their C-suite is peculiarly sanctimonious. For everything else, companies are just public goods to which every one is entitled access as a matter of right (maskless! gun-toting!) and equal treatment (don't censor me, bro!) so long as it's not a Sunday (looking at you Texas -- why are car dealerships closed one weekend day, again?)

[Dave_A]

Aside from the *obvious* First Amendment concerns, what the hell business does Texas have regulating activities that take place in a Facebook data-center in Oregon, using code written, configured and installed from (Somewhere that's not Texas)?

It is long past time the federal government put it's foot down on the dormant commerce clause.

Internet use is almost always interstate commerce, and states should be powerless to regulate it in any way.

[Greg J]

Citizens of Texas are having their freedom of speech crushed by fascistic companies that do business in Texas. That gives Texas "the right" to do something about it.

[wolfefan]

Hi Greg. What freedom of speech is that? Do people have a right to speak on Twitter, or in the church where I pastor, or on any other private property? If so, where is this right found?

[DaveM]

Just from the IT technical angle, I wouldn't push too hard on the idea that code runs on a server out of state as any kind of protection. Code is run EVERYWHERE, entire classes of it specifically in the end user's local browser.

[Greg J]

Yep!

Javascript is computer code that runs on your browser, on the computer you're using wherever it is you're accessing Twitter / Facebook / whatever.

When a Texas user uses a Social Media site, that site's code is runnign on a Texas computer

[Greg J]

So, I guess that the Left is now going to discover that they really love the Rocket Docket, yes?

[SRG]

If the opinion ever does get written, it will be to use the English slang, "bent". It is basically impossible for an honest judge to side with Texas in this. This would not be an impediment for Edith Jones.

[Eric Rasmusen]

My thoughts on the Stay decision, evolving, are at https://ericrasmusen.substack.com/p/how-the-ellsberg-paradox-applies?s=w

Alito has a dissent issued, joined by Gorsuch and Thomas but not Kagan. Will there be a majority opinion?
Kagan may well have been motivated by the procedural concerns I talk about at https://ericrasmusen.substack.com/p/the-paxton-v-netchoice-stay-application?s=w

My piece of today applies the Ellsberg Paradox and Knightian Uncertainty to Alito's dissent. I will be revising it. So far I don't give my opinion as to whether Alito's reasons--- which are technical legal reasons, not on the merits--- are correct.