The Volokh Conspiracy

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Free Speech

Two Commentaries on the Fifth Circuit's Texas Social Media Law Decision


I'm still trying to fully digest the Netchoice v. Paxton opinions (I've been slammed with several things the last few weeks, including an interesting and unexpected development which I hope to blog about in some detail next month). But for now, I thought I'd pass along two commentaries from top scholars on the subject, one entirely critical from Prof. Genevieve Lakier (Chicago) and one that's mostly critical from Prof. Alan Rozenshtein (Minnesota). Here's the opening of Prof. Lakier's (which is a Twitter thread):

There has been a lot of discussion about the opinion the Fifth Circuit released last Friday upholding Texas's new social media law. Lots of people have criticized the decision for getting the law wrong.

Indeed, the opinion engages in an unapologetic, dramatic, sometimes bizarre rereading of precedents we thought we knew. For First Amendment lawyers—well, for me—reading it feels like entering the upside down. But why exactly?

In this thread, I highlight a few of the really significant departures the opinion makes from established precedent. I focus on the non-discrimination provisions in the law because there's more (much more!) than enough there for a thread.

And an excerpt from Prof. Rozenshtein's:

As someone who has argued for the constitutionality (and indeed desirability) of some government regulation of platform content moderation, I was hoping that the first judicial decision upholding such regulation would be a thoughtful and measured approach to what is indisputably a hard, even wicked, problem.

Unfortunately, the Fifth Circuit's decision, written by Judge Andrew Oldham, is decidedly not that. Although not without its good points, it is largely a crude hack-and-slash job that misstates the facts and the law and ignores the proper role of an intermediate court, all in a sneering tone that pretends that those who disagree with it are either stupid or evil. It's an extreme example of First Amendment absolutism: the insistence that the First Amendment has either nothing to do with content moderation or that it provides maximum constitutional protections to such practices. The opinion deserves to be swiftly overruled, either by the full Fifth Circuit or by the Supreme Court.