The mere fact that this view exists is not surprising. When Texas originally passed the law, which places strong limits on the power of major social media companies to moderate content and ban users deemed offensive or worse, the same panel of judges struggled to defend it. Trade organizations representing major social media companies sued to block the law, and a federal court agreed with them. In May, the Fifth Circuit issued a brief, unexplained injunction in NetChoice v. Paxton, which reinstated the Texas law—until the Supreme Court blocked that decision a few weeks later, effectively suspending the law once again. Now, the Fifth Circuit is trying to reinstate the law for good. Her latest opinion, which explains why the court sided with the Texas law, is extremely difficult to square with longstanding First Amendment law. Indeed, he rejects this law, arguing that the government can force private companies—or, at least, large private social media companies—to publish content that the companies do not wish to host. The Texas law is potentially an existential threat to the social media industry. Its purported anti-censorship provisions are so strict that they would likely prevent major social media platforms from removing content promoting Nazism or white supremacy, or even block social media users who engage in harassment campaigns against others users. In addition, the law imposes disclosure and procedural requirements on major platforms that may be literally impossible to comply with. Given the Supreme Court’s previous intervention in this case, there is a good chance that the law will be suspended again in fairly short order. But the law — and the back-and-forth over it — raise interesting questions about how much power social media companies should have over public discourse.
How Texas Law Works
Under current First Amendment law, individuals and private businesses have the right to speak their mind, as well as the right not to speak when they don’t want to or when they disagree with a particular point of view. As the Supreme Court explained in Rumsfeld v. Forum for Academic and Institutional Rights (2006), “this Court’s leading First Amendment precedents have established the principle that free speech prohibits the government from telling people what to say.” . This freedom allows companies to choose which opinions of their users to publish as well. (More on that later.) However, Texas law prohibits a social media platform “that has more than 50 million active users in the United States in a calendar month” from banning a user — or even moderating or restricting a user’s content or modifies the algorithms that display content to other users — because of that user’s “opinion.” The Texas law allows individual social media users who believe a platform has violated the law to file a lawsuit to force compliance. It also allows for lawsuits by the state attorney general. Technically, the law’s restrictions only apply to Texas residents, businesses doing business in Texas, or a social media user who “shares or receives content on a social media platform in this state.” As a practical matter, however, social media platforms are likely to have difficulty determining which users are viewing social media content in Texas and which businesses have operations in Texas. Thus, they could be forced to apply the Texas rules to each user in order to avoid being sued for inadvertently targeting someone to whom Texas law applies. Texas Republicans have been quite open about the fact that they intend the law to counter what Texas Gov. Greg Abbott (R) described as “a dangerous move by social media companies to silence conservative views and ideas.” But while some individual conservatives have been banned from some platforms, including former President Donald Trump, evidence that social media companies engage in any kind of systemic discrimination against conservative views is pretty slim. And, in any case, the law applies broadly to almost all forms of discrimination, regardless of whether the speech at issue is political. Suppose, for example, that someone, angry that a woman he met online refused his advances, decides to bombard that woman with harassment, calling her “ugly.” If Twitter bans that user from calling the woman “ugly,” Texas law would likely also require Twitter to ban anyone who calls the woman “beautiful” — because the law prohibits discrimination based on viewpoint. Similarly, if a literal Nazi were to open a YouTube account that posted videos calling for the systematic extermination of all Jews, Texas law would prevent YouTube from banning that user or removing the Nazi videos unless they did the same against users who express the opposite. view — that is, the view that the Jews should not be exterminated. In addition, the law would require major social media platforms to publish a “semi-monthly transparency report” disclosing any “actions” they took against specific content. It would also require them to create a process where decisions to remove content can be appealed — and those review requests must be resolved within 14 days. But as Facebook explained in a court filing, it only “makes decisions about “billions of pieces of content” and[a]These decisions are unique and context dependent … and involve some measure of judgment.” It’s unclear whether Facebook, or any of the other major platforms, has the physical ability to comply with the law’s disclosure and appeals requirements. The Texas law, in other words, could potentially turn every major social media site into a cesspool of racial slurs, misogyny and targeted harassment that the platforms would be powerless to control — and that means the platforms are even able to comply with the law.
The First Amendment prohibits this law
To understand why this law violates the Constitution, it is helpful to understand three established principles of First Amendment law. The first principle is that, under what is known as the “state action doctrine,” the First Amendment generally prohibits only the government, not private entities, from taking actions that restrict speech. This doctrine respects the gross power that exists between the government and literally any other agent. If Facebook doesn’t like what you have to say, it can kick you off Facebook. But if the government doesn’t like what you’re saying (and if there are no constitutional guarantees against government overreach), it can send armed police to haul you off to jail forever. The second principle is that corporations can claim free speech protections with the same certainty as individuals. This proposal became controversial, especially among left-wing critics of the Supreme Court, after the Court ruled in Citizens United v. FEC (2010) that corporations have a First Amendment right to spend lavishly to influence elections. But the proposition that corporations have First Amendment rights long predates Citizens United and is one of the foundations of press freedoms in the United States. In New York Times v. Sullivan (1964), for example, the Court held that Jim Crow state officials could not use malicious libel suits to punish a media company that published an advertisement with a pro-civil rights viewpoint. If the companies could not assert their First Amendment claims, then the New York Times Company would have lost this case. The third principle of First Amendment law is that the Constitution protects against both government censorship and government action that compels people to speak when they would rather remain silent. The seminal case is West Virginia State Board of Education v. Barnette (1943), which held that the government could not require students to salute the flag or say the Pledge of Allegiance. Subsequent rulings have held that the prohibition on compelled speech prevents the government from telling media companies what to publish. In Miami Herald v. Tornillo (1974), for example, the Court held that a newspaper’s “selection of material to be included in a newspaper” is subject only to the newspaper’s “editorial control and judgment” and that “it has not yet been shown how governmental regulation of this of due process may be exercised under the First Amendment’s guarantees to a free press.” Then, in Reno v. ACLU (1997), the Court held that the same First Amendment status that applies to physical media applies to the Internet. Reno recognized that the Internet differs from other forms of communication because “the Internet can hardly be thought of as a ‘scarce’ expressive commodity” — that is, unlike a newspaper, there is no physical limit to how much content can be published on a website. However, the Court concluded that “our cases provide no basis for determining the level of First Amendment scrutiny that should apply to this instrument.” For all that, Judge Andy Oldham, the Trump appointee and former clerk to Justice Samuel Alito who authored the Fifth Circuit’s opinion in NetChoice, argues that the First Amendment does not apply to the Texas law because the law “does not relax the speech. ” and instead “freezes censorship” by preventing social media companies from limiting who is allowed to post on their platforms or what they can…
