Another Commentary on the Fifth Circuit's Texas Social Media Law Decision

As I noted yesterday, I'm still trying to fully digest the Netchoice v. Paxton opinions, but I passed 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). I thought I'd also pass along are more positive commentary from Prof. Adam Candeub (Michigan State):

Last Friday in NetChoice v. Paxton, Judge Andy Oldham of the U.S. Court of Appeals wrote an opinion for the Fifth Circuit upholding H.B.20, Texas's law prohibiting social media platforms, such as Twitter and Facebook, from discriminating against users based on their viewpoints. The Texas law would require the internet platforms' content-moderation policies to employ viewpoint-neutral criterion, ending censorship of conservatives and dissenters from the internet.

Big Tech supporters on the left and libertarian right greeted the opinion with beating of breasts and gnashing of teeth. The Left worries that the platforms will be less able to stifle views it finds dangerous and undesirable. (Commenters on the Left have yet to square this view to their hostility to corporate First Amendment rights in Citizens United.) Libertarians decry the opinion as an intrusion on the internet platform's "editorial discretion" which they claim the First Amendment protects completely. Both sides smear the opinion as an act of judicial willfulness unmoored from precedent.

But Judge Oldham's opinion stands on firm ground. The opinion's critics argue that the First Amendment protects the act of exercising "editorial discretion": the right of platforms to control what content they transmit. But, critics forget that the First Amendment protects only expressive acts—a point made clear in the two Supreme Court case on which Big Tech (and Judge Oldham's critics) base all their critique: Miami Herald v. Tornillo and Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston.

In Miami Herald, the Supreme Court held that when newspaper editors decide to include a particular op-ed in their pages, they convey the editors' message that the article is insightful or otherwise valuable. Similarly, the St. Patrick Day's Parade organizers in Hurley, expressed a message, attributable to them, of general support for each group it approved to march, communicating with the various groups a discrete set of ideas and positions.

In contrast, most platform acts of content moderation are not expressive under the Supreme Court tests. Most obviously, they are not expressive because most are never communicated and therefore cannot convey a message. For instance, shadow banning, by which a platform renders a user's posts invisible to all but that user, cannot convey a message because no one knows, except the platform, that it is happening.

Indeed, all other types of invisible content prioritizations lack the required expressiveness because users don't know when content is promoted or hidden. Instead, invisible prioritization only communicates by reference to other speech—and as the Court recognized in Rumsfeld v. FAIR, protected speech must convey a message itself, without extraneous explanation. Finally, content moderation as a whole cannot convey a message because the platforms keep their decisions private, and users lack access to representative samplings of edited material to infer any message.

Of course, when an internet firm bars an individual from their platforms because of his viewpoint and explains why, the platform engage in an expressive act. But, these acts of platform censorship simply express discriminatory animus. Just as the First Amendment does not protect lunch counters in their "expressive" refusals to serve individuals belonging to a particular race or religious groups, so the First Amendment does not protect the platforms in their discriminatory refusal to serve the public even if the platforms consider their refusals expressive. Indeed, state and local civil rights laws prohibit discrimination on the basis of political belief or affiliation—and have survived for decades without successful First Amendment challenge. H.B. 20 stands firmly on the rationale that undergirds all of our civil rights law.

And, finally, as Judge Oldham pointed out, just as telephone companies do not express their customers' conversations which they transmit, a social media platform's transmission of a message does not express its own editorial decisions or speech. The platforms themselves maintain this position vociferously. In countless section 230 cases, the social media firms argue that they should have no liability for their users' speech because it is speech, as section 230 states, of "another." Now, the platforms claim users' speech as their own for First Amendment purposes. But, they cannot have their section 230 free lunch—and eat it too.

The opinions' critics end up arguing that the First Amendment gives private businesses and entities control over opinions expressed within their premises. But, precedent rejects that view. Cable systems must carry local broadcast stations; telephone companies must carry messages expressing all viewpoints; and, airlines must carry passengers regardless of their views of the 2020 election. Similarly, courts, like the Supreme Court in Pruneyard, have long upheld state laws that require shopping centers to allow political expression, prohibit neighborhood associations from banning political lawn signs, and limit employer's ability to control their employees' political speech and expression on the job. This precedent upholds H.B.20.

The Supreme Court should grant certiorari in this case because it touches key issues in today's political discourse. The complex concerns it raises deserve the most exacting scrutiny. But, claims that the Fifth Circuit's opinion is anything but a thoughtful reflection of the Supreme Court's current First Amendment jurisprudence should not mar that important public discussion.

Prof. Candeub is a law professor at Michigan State University and senior fellow at the D.C.-based Center for Renewing America, and served as expert witness for the State of Texas in NetChoice v. Paxton.