The stakes are high not just for government and corporations, but because of the increasingly dominant role that platforms like Twitter and Facebook play in American democracy and elections. Social media posts have the potential to amplify misinformation or hate speech, but removing controversial views can stifle public debate on important political issues. Governments that say conservative voices are the most often silenced by tech companies’ decisions scored a major victory Friday when a divided panel of the U.S. Court of Appeals for the 5th Circuit upheld a Texas law that bars companies from removing political ideology based on positions. Appeals court upholds Texas social media law “Big Tech’s reign of endless censorship and suppression of conservative views is coming to an end,” Texas Attorney General Ken Paxton (R) said after the ruling. “These massive corporate entities cannot continue to go unchecked as they silence the voices of millions of Americans.” But a unanimous panel of the U.S. Court of Appeals for the 11th Circuit reversed earlier this year, saying a similar Florida law violated constitutional protections for tech companies that don’t want to host views on their platforms that they find hateful and divisive. or false. Judge Kevin Newsom criticized a depiction of social media platforms as “dumb pipes … relaying reflexive data from point A to point B.” Instead, he wrote, “their content control decisions constitute the same kind of editorial judgments” that are entitled to First Amendment protection when made by a newspaper. All of the appellate judges reviewing the Florida and Texas laws have noted the difficulty of applying some of the Supreme Court’s legacy media precedents. And all of the stations so far have been nominated by Republican presidents, with Newsom and Justice Andrew Oldham, who wrote the dissenting opinion in the Texas case, both nominated by President Donald Trump, who was banned from Twitter after U.S. Capitol riot. January 6, 2021. “We are in a new arena, a very expansive one, for speakers and for those who would moderate their speech,” wrote Judge Leslie Southwick, who has served on the 5th Circuit for 15 years and dissented in Friday’s ruling. “None of the above fits perfectly. … The closest match I see is the case law establishing the right of newspapers to control what they do and don’t print, and that’s the law that guides me until the Supreme Court gives us more.” Such guidance is likely to come soon, perhaps in the term that begins next month. Disputes among lower courts over important legal issues are the most likely driver of the Supreme Court’s decision to take up a case, and Florida’s petition challenging the 11th Circuit’s ruling is expected at the high court on Wednesday. When the justices in May ruled that the Texas law would not go into effect while the legal battles continued, Justice Samuel A. Alito Jr. said the matter “will clearly merit this court’s review.” The Supreme Court is currently blocking Texas’ social media law “Social media platforms have transformed the way people communicate with each other and receive news,” Alito wrote, along with colleagues Clarence Thomas and Neil M. Gorsuch. “At issue is a groundbreaking Texas law that confronts the power of dominant social media companies to shape the public debate about the important issues of the day.” Alito added: “It is not at all obvious how our existing precedents, which predate the Internet age, should apply to large social media companies.” The court’s majority did not explain its reasoning for blocking the Texas law, but at the time, only one district court had weighed in, and ruled for the tech companies. Oldham’s opinion changed that. He wrote that social media companies “offer a rather strange inversion of the First Amendment.” “This amendment, of course, protects every individual’s right to ‘freedom of speech,’” Oldham wrote. “But the platforms argue that buried somewhere in the individual’s enumerated right to free speech is a corporation’s right countless right to muzzle speaking.” Overall, legal experts following the case closely said the 5th Circuit’s ruling contradicted long-standing court precedent and warned that the Texas law would force companies to spread what they consider misinformation and harmful content on their platforms. “To the extent that politicians have spread conspiracy theories or incitement, that will no longer be a reason for the platforms to take them down,” said Evelyn Dueck, who teaches online speech regulation at Stanford Law School. Social media platforms, he added, may be forced to retain “a lot of horrible and otherwise hateful content” that they currently remove and “may become unusable.” At its core, the First Amendment protects against government interference with speech. Courts have also held that the First Amendment protects the right of private corporations, including newspapers and broadcasters, to control the speech they publish and disseminate. This includes the right of editors not to publish something they do not want to publish. In a 2019 ruling, Justice Brett M. Kavanaugh wrote for the court’s conservatives that a private cable access company did not become a government agent subject to First Amendment restrictions just because it was licensed by a government. In the course of the decision he touched on the roles of private companies. “Providing some sort of forum for speech is not an activity traditionally performed only by governmental entities,” Cavanaugh wrote in Manhattan Community Access Corp. v. Halleck. “Therefore, a private entity that provides a forum for speech is not transformed by that fact alone into a state actor.” Liberals on the court disagreed on the specifics of the case, but appeared to agree on the rights of private companies. “There are purely private spaces where the First Amendment is (as relevant here) inapplicable,” wrote Justice Sonia Sotomayor. “The First Amendment leaves a private shop owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing objectionable views.” Oldham found it unilluminative of the Texas case and pointed to a footnote in Cavanaugh’s opinion: “A separate question not raised here is the extent to which the First Amendment protects private agencies such as [media companies] by government law or regulation requiring these private entities to open their property to speech by others.” Oldham distinguished newspapers from social media platforms, which Oldham writes are more like “common carriers” like phone companies. (Thomas also said he was open to such a reading of the law.) Legal experts said the court correctly drew the distinction, but that online platforms are different from phone companies, for example, which don’t cut service based on content. of a conversation. “That’s what makes these cases difficult,” said Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University. “We don’t have a doctrinal framework to place social media platforms. They occupy a new space, and they should occupy a new space in the law, but what does that look like?” Some laws that would be unconstitutional as they apply to news outlets and their publication decisions, Jaffer suggested, may be permissible when it comes to social media platforms. A social media company could, for example, need to explain its decision to remove someone from its platform or be more transparent about how it moderates content. Both the Texas and Florida statutes have such provisions, and the judges who have reviewed them have tended to let them stand. Alan Z. Rozenshtein, a professor at the University of Minnesota Law School, agreed with the 5th Circuit’s description of social media platforms as increasingly central to the public debate and said there is a potential role for some government regulation of surveillance content. But he said the Texas law goes too far, calling the 5th Circuit’s position that content moderation is “extreme” censorship. Companies, he said, are trying to create platforms where their users “want to hang out.” “We can talk about whether Nazis and terrorists should have the right to speak or not, but it’s not simple censorship,” he said. “If you have a cesspool without moderation, that’s great for trolls, but that’s not conducive to speaking up for others — especially those who are going to be threatened and shut down. There has to be some balance.” Tech industry groups representing social media companies are still weighing how to respond to the ruling. Lawyers for the Computer & Communications Industry Association (CCIA) and Netchoice met on Monday to discuss how to challenge the ruling, according to a person familiar with the matter who spoke on condition of anonymity to discuss their plans. They are considering an emergency request to the Supreme Court to block the law from taking effect early next month, the person said. The groups are also considering asking a full complement of 5th Circuit judges to review the case originally decided by a three-judge panel, or appealing directly to the high court, potentially forcing a ruling that could have wide-ranging consequences for state legislatures considering legislation similar to the Texas Act. “The fight is far from over, and in the long run we are very confident that any decision that attempts to legally enforce what views a private business distributes will not…
