Two GOP judges just stripped social media companies of basic First Amendment rights

The conservative United States Court of Appeals for the Fifth Circuit handed down a brief, unexplained order Wednesday evening that will throw the entire social media industry into turmoil if the Texas law at issue in this case is allowed to remain in effect.

The decision in NetChoice v. Paxton reinstates an unconstitutional Texas law that seizes control of the major social media platforms’ content moderation process, requiring them to either carry content that those platforms do not wish to publish or be so restrictive it would render the platforms unusable. This law is unconstitutional because the First Amendment prohibits the government from ordering private companies or individuals to publish speech that they do not wish to be associated with.

As the Supreme Court said in Rumsfeld v. Forum for Academic and Institutional Rights (2006), “this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”

The Texas law prohibits a social media platform “that functionally has more than 50 million active users in the United States in a calendar month” from banning a user — or even from regulating or restricting a user’s content or altering the algorithms that surface content to other users — because of that user’s “viewpoint.”

The law only applies to Texas residents, businesses that operate in Texas, or to anyone who “shares or receives content on a social media platform in this state.” Practically speaking, however, a social media company could struggle to identify which users view social media content within the state of Texas, and which businesses have Texas operations. So, if they don’t want to be sued for violating the Texas law, they would likely end up applying Texas’s rules to all users.

The law applies broadly, moreover, to all forms of viewpoint discrimination, regardless of whether that viewpoint is political.

For these reasons, even setting aside the fact that this law is unconstitutional, it imposes a completely unworkable standard on social media platforms. Imagine, for example, that a man stalks his ex-girlfriend on Twitter, creating multiple accounts that harass her and call her “ugly,” while also encouraging others to do the same.

If Twitter bans this stalker for calling his ex “ugly,” the Texas law could be interpreted to also require Twitter to ban anyone who calls the same woman “beautiful,” because the law forbids discrimination on the basis of viewpoint.

Similarly, imagine that a member of the Ku Klux Klan starts a YouTube account called “Black people are worthless,” which posts videos of racial-slur laden rants claiming that Black people have contributed nothing valuable to society. If YouTube so much as tweaks its algorithm to prevent this klansman’s videos from autoplaying for unsuspecting users, it would also have to do the same to any content on the same topic expressing the opposite viewpoint — that is, the viewpoint that Black people have, in fact, made valuable contributions to society.

The law permits any user who believes that a social media platform has violated the Texas law, as well as the state’s attorney general, to sue that platform in order to force compliance. A victorious plaintiff is entitled to an injunction requiring the platform to comply with the state law, as well as attorney’s fees. Courts may also “hold the social media platform in contempt” and “use all lawful measures to secure immediate compliance” if a social media company resists an unconstitutional court order requiring it to involuntarily publish content.

The Texas law, in other words, would effectively turn every single major social media platform into 4chan — a cesspool of racial slurs, misogyny, and targeted harassment that the platforms would be powerless to control, unless they wanted to enact such sweeping content moderation policies that their platforms would become unusable. (Admittedly, the Texas law does permit social media companies to remove some racist and sexist content, but only if that content “directly incites criminal activity or consists of specific threats of violence.”)

The law was set to go into effect last December, but after two social media trade associations sued, a federal judge blocked the law one day before that could happen. The Fifth Circuit’s one-sentence order doesn’t rule on the constitutionality of the law, but reinstates it while the lawsuits play out — placing social media companies in immediate jeopardy if they engage in the most basic content moderation.

Texas claims that social media is just like a train

The Texas law is one of several recent attempts by Republican state governments to sanction media companies they perceive as insufficiently deferential to conservatives. In a statement released shortly after he signed the bill, Texas Gov. Greg Abbott (R) claimed that he did so to thwart a “dangerous movement by social media companies to silence conservative viewpoints and ideas.”

Although there are individual examples of conservatives being kicked off of social media platforms — Twitter and Facebook famously banned former President Donald Trump after they found his actions on January 6 violated their policies — the evidence that social media companies are engaged in any kind of systematic discrimination against conservative viewpoints is, to say the least, thin.

Even if companies like Twitter or Facebook were targeting conservative speakers, they have a First Amendment right to do so. Corporations, like individuals, are allowed to express whatever viewpoint they choose. And they are not required to give equal time to opposing viewpoints.

The rule that the First Amendment applies to corporations, and not just individuals, became controversial after the Supreme Court’s campaign finance decision in Citizens United v. FEC (2010), but this rule long predates Citizens United. In New York Times v. Sullivan (1964), for example, the Court ruled that Jim Crow state officials could not use malicious libel suits to punish a media corporation that published an advertisement with a pro-civil rights viewpoint.

This rule — that companies can publish whatever viewpoints they want, and can also exclude any viewpoint they want — applies to newer platforms like social media as surely as it applies to traditional platforms such as a newspaper or a company’s public statements. That was the holding of Reno v. ACLU (1997). Although Reno acknowledged that the internet offered speakers new ways to popularize their views, it held that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”

The First Amendment provides free speech protections that sometimes go beyond the protections afforded to social media companies under federal laws such as Section 230 of the Communications Decency Act. Section 230 establishes that internet platforms typically cannot be sued because they host content that may be libelous or that is otherwise unprotected by the First Amendment. In this way, they are more of a platform than a newspaper publisher legally responsible for the views expressed on their site.

But even if Section 230 were repealed tomorrow, the First Amendment would still prohibit the state of Texas from ordering a social media company (or any other company, for that matter) to publish content that it does not wish to publish.

To this, Texas says that the First Amendment should treat social media companies less like a newspaper, and more like a railroad. Specifically, the Texas law declares that major social media companies should be classified as “common carriers,” a term that has historically applied to buses, trains, airlines, and other transportation companies that offer their services to the general public.

As one federal appeals court explained in a 2016 opinion, “common carriers have long been subject to nondiscrimination and equal access obligations” without raising any First Amendment issues. And courts have long allowed some communication forums to be classified as common carriers, such as telephone companies and broadband providers.

But, as Judge Robert Pitman explained in his opinion blocking the Texas law — the opinion that was just stayed by the Fifth Circuit — there are very important distinctions between a company like Facebook or Twitter, and a phone company or internet service provider.

Common carriers, Pitman explains, act “as a passive conduit for content posted by users.” Your phone company does not monitor your calls to make sure that you aren’t saying anything offensive to the people that you speak with. And your broadband provider does not read your emails and refuse to deliver ones that contain racial slurs.

Social media companies, by contrast, are “more akin to newspapers that engage in substantial editorial discretion.” As Facebook told Pitman in a court filing, that company “makes decisions about ‘billions of pieces of content’ and ‘[a]ll such decisions are unique and context-specific[] and involve some measure of judgment.’”

To be sure, social media platforms are not exactly the same as newspapers. The whole reason why laws like Section 230 exist is because internet platforms exist in a gray area between newspapers, which publish nothing that is not approved by a journalist employed by that paper, and telephone companies, which engage in no content moderation whatsoever. Congress enacted Section 230 because it understood that platforms that fall into this gray area should not always be subject to the same rules that apply to newspapers.

But that doesn’t mean that social media companies are common carriers. Again, the sort of communications companies that are treated as common carriers — phone companies and internet service providers — are companies that typically engage in no content moderation. Social media platforms, by contrast, typically have terms of service that its users must comply with, and they employ teams of moderators who evaluate whether specific content violates these terms and must be taken down. Many also use algorithms that effectively give each user a customized experience tailored to whatever the platform thinks the user wants to see. That’s a far cry from a common carrier that acts merely as a “passive conduit.”

Even if a company like Twitter could be classified as a common carrier, the anti-discrimination rules applied to such carriers are rarely absolute. Amtrak’s terms of service, for example, permits it to remove passengers “whose conduct is objectionable” or “whose personal hygiene makes them offensive.” So why shouldn’t Twitter be allowed to remove a user who, for example, bombards others with racial slurs?

Texas’s approach to the First Amendment is probably only shared by a fringe of judges

The Fifth Circuit’s decision halting Pitman’s order consists of only a single sentence — “IT IS ORDERED that the appellant’s opposed motion to stay preliminary injunction pending appeal is GRANTED” — and a single footnote indicating that the three-judge panel that heard this case is “not unanimous.”

Although the court did not identify which of the three judges dissented, it’s not hard to guess how the votes broke down. The panel includes Judge Leslie Southwick, a relatively moderate conservative appointed by President George W. Bush, as well as two notoriously right-wing judges.

Judge Edith Jones is a former general counsel to the Republican Party of Texas who was appointed by President Ronald Reagan when she was just 35 years old. Since then, she’s developed a reputation as an especially caustic conservative — Jones once told a liberal colleague to “shut up” during a court hearing, and she joined an opinion arguing that a man should be executed despite the fact that his lawyer slept through much of his trial.

The third judge, Andy Oldham, is a young Trump appointee who clerked for Justice Samuel Alito. Among other things, Oldham is the author of a Fifth Circuit opinion permitting a Trump-appointed district judge to seize control of much of the nation’s policy governing the US-Mexico border.

It is likely, but not entirely certain, that Jones and Oldham are right-wing outliers even when compared to the median justice on the Supreme Court. In 2021, Justice Clarence Thomas published an opinion expressing sympathy for the “common carrier” theory Texas relies on in NetChoice. But that opinion was joined by no other justice.

In any event, given the enormous disruption the Fifth Circuit’s NetChoice decision is likely to create for social media companies, it is likely that they will ask the Supreme Court to intervene very soon. We should know in very short order, in other words, whether the Supreme Court intends to write social media out of the First Amendment.