Fifth Circuit upholds Texas law against social media censorship

 Red States:

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This all started in September 2021 when the Texas Legislature passed a pretty commonsense bill. It says that any social media platform with over 50 million subscribers may not censor (and the Texas law defines “censor” so that the “only government can censor” crowd won’t have a hernia):

(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.

The Fifth Circuit panel notes that under Supreme Court precedents, to make a successful First Amendment challenge, the plaintiff must show that the “challenged law either (a) compels the host to speak or (b) restricts the host’s own speech. The Platforms cannot make either showing.” The law allows the platform’s management to say anything it wants to say; what it prohibits is that platform, when operating under the Section 230 safe harbor provided in the Communications Decency Act, from silencing the viewpoints of users.

When the  Fifth Circuit lays out the attack on the Texas law, it exposes the self-contradictory heads-I-win-tails-you-lose nature of their argument (italics are in the original).

Section 230 undercuts both of the Platforms’ arguments for holding that their censorship of users is protected speech. Recall that they rely on two key arguments: first, they suggest the user-submitted content they host is their speech; and second, they argue they are publishers akin to a newspaper. Section 230, however, instructs courts not to treat the Platforms as “the publisher or speaker” of the user-submitted content they host. Id. § 230(c)(1). And those are the exact two categories the Platforms invoke to support their First Amendment argument. So if § 230(c)(1) is constitutional, how can a court recognize the Platforms as First-Amendment-protected speakers or publishers of the content they host?

The Platforms respond that they in fact are speakers and publishers, and Congress simply instructed courts to pretend they aren’t for purposes of publishing-related liability. Moreover, the legislature can’t define what constitutes “speech” under the First Amendment—otherwise, for example, it could abrogate Miami Herald by simply defining newspapers as “not publishers.” Because the legislature may not define what constitutes FirstAmendment-protected speech, the Platforms argue § 230 has no bearing on the constitutional questions in this case.

The opinion also supports Texas using “common carrier” doctrine to break social media censorship.

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The reasoning of this decision appears sound.  Whether the Supreme Court will agree is yet to be determined.  I think it is a good decision.