The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Social Media

FIRE Podcast on Free Speech and the Texas Social Media Law

The podcast is a debate between legal scholar Brad Smith and myself.


(Michele Ursi /

The Foundation for Individual Rights and Expression recently posted a video of a podcast on which legal scholar Brad Smith (who is also chairman of the Institute for Free Speech) and I debated the recent Fifth Circuit decision upholding the constitutionality of Texas' social media law, which bars major social media platforms from engaging in most forms of content moderation.

In the podcast, I criticized the Fifth Circuit ruling, expanded on  a post explaining why the Texas is a menace to freedom of speech, addressed the "common carrier" rationale for the Texas law, and also briefly summarized why the law violates the Takings Clause of the Fifth Amendment (an issue that has yet to be litigated in court). Brad largely defended the constitutionality of the Texas law. But it's notable that he was unwilling to endorse some of the major arguments advanced by the Fifth Circuit majority, and by other defenders of the law. We both agree this issue is likely to get to the Supreme Court (in part because the Eleventh Circuit reached a contrary decision in a ruling on Florida's similar law). In my view, the Court has already signaled that a majority of justices believe the Texas law is unconstitutional, when it overturned a previous Fifth Circuit ruling lifting a trial court injunction against implementation of the law.

I would like to thank FIRE for organizing this event, and Brad Smith for his insightful contribution to the discussion.