Social Media Censorship of Speech May Head to Supreme Court

Posted 5 days ago


A New Orleans federal appellate court for the Fifth Circuit has reversed and remanded a lower court decision that held that a Texas law, House Bill 20, (HB20) was unconstitutional.

The law bans social media platforms like Facebook and Twitter from censoring speech based on the user’s viewpoint, the viewpoint of another user, or the user’s geographic location in Texas (i.e., users in Austin, which is more liberal, have no better or worse standing than users in the more conservative Texas panhandle.) While the law does not provide for monetary damages, except attorneys’ fees, users who prove they have been censored are entitled to declaratory relief and injunctive relief. And social media platforms that fail to promptly comply with a court order to lift bans on users’ speech can be held in contempt and subject to significant, but unspecified, daily penalties. The law only says the penalties must be “sufficient to secure immediate compliance” with the law.

Meta (Facebook), Google, Twitter, et. al., had banded together in a Washington, D. C., industry association called, “Net Choice, LLC” to challenge the Texas law, which was passed last year.

Circuit Judge Andrew S. Oldham, a Trump appointee, delivered a stinging rebuke to the NetChoice platforms’ challenge to the Texas law, writing that “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.’ … Then, having cemented itself as the monopolist of ‘the modern public square,’ 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.”

The New Orleans court’s Fifth Circuit finding is contrary to that made by the Eleventh Circuit, sitting in Atlanta. That court had struck down a similar law from Florida, SB 7072.

The Atlanta court, ruling in May, held that “it is substantially likely that social-media companies—even the biggest ones—are “private actors” whose rights the First Amendment protects … that their so-called “content-moderation” decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative.”... (Read more)