By a split decision, the federal Court of Appeals for the Fifth Circuit upheld a Texas law prohibiting large social media companies from viewpoint discrimination in the services they provide.
Some background: once upon a time, there was such a thing as a “public square.” Markets happened in public space. On market days, merchants and farmers from out of town could come into town and sell their wares at those markets. People who wanted to spread information could announce it out loud at those markets so friends and neighbors heard. Even after public markets became infrequent, people did their shopping in stores that abutted public streets, where public announcements could be made.
Then the telephone was invented, and later the shopping mall became popular. People did a lot less shopping and spreading news in public spaces. Telephones became tightly regulated public utilities.
Telephone companies were also treated as “common carriers,” a term used for businesses like buses and trains that provide service to get from point A to point B; the term now also applies to communication services. (“Common” means the service is offered to the general public.) Federal civil rights statutes outlawed discrimination on common carriers on the bases of race, color, national origin, and religion; up to now, political opinions haven’t been a prohibited basis to discriminate.
Courts wrestled with whether privately-owned shopping malls could keep out handbill spreaders, and mostly decided that they could, because they were private. There were occasional outlier decisions, like PruneYard Shopping Center v. Robins. The U.S. Supreme Court upheld the California Supreme Court’s holding that the state constitution did not let private mall owners bar the handbill-spreaders from spreading their message.
Then the internet and social media happened. Facebook, Twitter, and other social media have largely replaced the “public square” as fora for spreading news. Congress even helped social media along by granting platform owners immunity from liability for content spread on their website platforms. “Section 230,” as it’s generally called, immunizes owners (and users) of an “interactive computer service” who publish information provided by third-party users. The assumption was that platforms would be open to all.
It hasn’t quite worked out that way.
Many social media companies are owned and/or controlled by left-wing partisans. Twitter and Facebook blocked New York Post coverage of alleged influence-peddling by the Biden family until after the 2020 election. Twitter also censored coverage by the NY Post and others of corruption within the Black Lives Matter organization. Crowdsourcing platform GoFundMe has refused to host politically incorrect conservative causes like New York City bodega clerk Jose Alba, Kyle Rittenhouse, and the Canadian trucker convoy. In the case of the trucker convoy, GoFundMe even threatened to take money already donated to the convoy and divert it to other recipients. More and more frequently, all of these media obstruct advocacy of right-of-center ideas, support for partisans of those ideas, and criticism of left-of-center ideas or left-wing political partisans.
Viewpoint discrimination by the largest social media platforms has seriously harmed conservative messaging. It’s not a healthy sign to non-conservatives concerned about the free spread of ideas, either.
Texas responded by finding that large social media companies are common carriers, and forbidding them to discriminate. The law, H.B. 20, only applies to platforms with more than 50 million monthly active users, like Facebook, Twitter, and YouTube. It bans such platforms from censoring user expression based on viewpoint. The law provides:
A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:(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.
HB 20 also imposes disclosure and operational requirements on the platforms. They must disclose how they moderate and promote content, publish an “acceptable use policy,” publish a “biannual transparency report,” and maintain a complaint-and-appeal system for their users when the platform removes content.
NetChoice and its co-defendant, both of which are trade associations representing companies that operate platforms covered by the Texas law, challenged the statute. The lower court enjoined the law as being unconstitutional. The appeals court stayed the injunction, but the Supreme Court lifted the stay, meaning the law was enjoined from being in effect.*
In a split decision (and after the quick trip to the Supreme Court to lift the circuit court’s stay), the Court of Appeals for the Fifth Circuit vacated the injunction and held that the state could properly prohibit viewpoint-based discrimination under its authority to bar common carriers from discriminating.The circuit court reversed the lower court and upheld the anti-censorship law.
A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances. In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, ––– U.S. ––––, 137 S. Ct. 1730, 1737, 198 L.Ed.2d 273 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings…And Section 7 of HB 20 imposes a basic nondiscrimination requirement that falls comfortably within the historical ambit of permissible common carrier regulation…The doctrine’s roots lie in the notion that persons engaged in “common callings” have a “duty to serve.” This principle has been part of Anglo-American law for more than half a millennium. For early English courts, this principle meant that private enterprises providing essential public services must serve the public, do so without discrimination, and charge a reasonable rate…The common carrier’s duty to serve without discrimination was transplanted to America along with the rest of the common law… It got its first real test with the rise of railroad empires in the second half of the nineteenth century. Rail companies became notorious for using rate differentials and exclusive contracts to control industries dependent on cross-country shipping, often structuring contracts to give allies (like the Standard Oil Company) impenetrable monopolies. See id. at 112–15, 129. American courts, however, often found that these discriminatory practices violated the railroads’ common carrier obligations…The telegraph was the first communications industry subjected to common carrier laws in the United States. See Genevieve Lakier, The Non-First Amendment Law of Freedom of Speech, 134 Harv. L. Rev. 2299, 2320– 24 (2021). Invented in 1838, the telegraph revolutionized how people engaged with the media and communicated with each other over the next half century. But by the end of the nineteenth century, legislators grew “concern[ed] about the possibility that the private entities that controlled this amazing new technology would use that power to manipulate the flow of information to the public when doing so served their economic or political self-interest.” Id. at 2321. These fears proved well-founded…In response, States enacted common carrier laws to limit discrimination in the transmission of telegraph messages. The first such law, passed by New York, required telegraph companies to “receive d[i]spatches from and for … any individual, and on payment of their usual charges … to transmit the same with impartiality and good faith.” …Courts applied this same holding-out test to novel communications enterprises. For example, in State ex rel. Webster v. Nebraska Telephone Co., 17 Neb. 126, 22 N.W. 237 (1885), a Nebraska lawyer sought a writ of mandamus to compel a telephone company to put a telephone in his office. The Supreme Court of Nebraska granted the writ, explaining that the company “ha[d] undertaken with the public to send messages from its instruments, one of which it propose[d] to supply to each person or interest requiring it.” Id. at 239, 22 N.W. 237. Because the company had “so assumed and undertaken to the public,” it could not arbitrarily deny the lawyer a telephone. Ibid. Other courts agreed and clarified that telephone companies owed this common carrier obligation even though they also imposed “reasonable rules and regulations” upon their customers…Texas permissibly determined that the Platforms are common carriers subject to nondiscrimination regulation. That’s because the Platforms are communications firms, hold themselves out to serve the public without individualized bargaining, and are affected with a public interest…The Platforms nonetheless contend that they cannot be regulated as common carriers because they engage in viewpoint-based censorship—the very conduct common carrier regulation would forbid. This contention is upside down. The Platforms appear to believe that any enterprise can avoid common carrier obligations by violating those same obligations.That is obviously wrong and would rob the common carrier doctrine of any content. The Platforms’ contention also involves a fair bit of historical amnesia. As discussed earlier, telegraph companies once engaged in extensive viewpoint-based discrimination, but that did not immunize them from common carrier regulation. Rather, for most legislators and courts, it made such regulation all the more urgent.
Judge Jones wrote a concurring opinion.
I concur in Judge Oldham’s conclusion and reasoning that the business of the regulated large social media platforms is hosting the speech of others… In particular, it is ludicrous to assert, as NetChoice does, that in forbidding the covered platforms from exercising viewpoint-based “censorship,” the platforms’ “own speech” is curtailed. But for their advertising such “censorship”—or for the censored parties’ voicing their suspicions about such actions—no one would know about the goals of their algorithmic magic. It is hard to construe as “speech” what the speaker never says, or when it acts so vaguely as to be incomprehensible. Further, the platforms bestride a nearly unlimited digital world in which they have more than enough opportunity to express their views in many ways other than “censorship.” The Texas statute regulates none of their verbal “speech.” What the statute does, as Judge Oldham carefully explains, is ensure that a multiplicity of voices will contend for audience attention on these platforms. That is a pro-speech, not anti-free speech result.
The language of Judge Jones’ concurrence is useful in evaluating the conduct of contemporary “protestors” at universities and elsewhere. Frequently, they shout down invited speakers; when prevented from doing so, they claim their free speech rights are being interfered with.
Judge Southwick concurred and dissented. He would have held that the internet companies engage in protected speech when they moderate content.
The central question in this case is whether social media platforms engage in First Amendment-protected expression when they moderate their users’ content. The erudite opinion of my colleagues in the majority says no. Although there are parts of the opinion I join, I write separately because, fundamentally, I conclude the answer to the question is yes.
The full opinion is available here.
Given that it’s a split decision, on such an important issue that crops up regularly, I doubt we’ve heard the last of it. Look for the plaintiffs to seek review from the entire Fifth Circuit (en banc review), or to seek review from the Supreme Court with a realistic chance the case will be accepted. As Justice Alito (joined by Justices Thomas and Gorsuch) wrote when the Supreme Court vacated the circuit court’s stay (i.e., the circuit court’s injunction against the district court’s injunction against the statute), “This application concerns issues of great importance that will plainly merit this Court’s review.”
* 9/28/22 This paragraph and the one below it were edited for clarity.
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