A federal appeals court panel, in a 2-1 decision, has upheld the Texas law that prohibited large social media companies, such as Twitter, Facebook and YouTube, from deleting a user’s comments and content even if the media platforms believe the content is harmful or extreme.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled Friday that the federal trial judge was wrong in striking down as unconstitutional the 2021 law, known as HB 20.
The Fifth Circuit ruled that the Texas law “chills no speech whatsoever.”
“To the extent it chills anything, it chills censorship,” Judge Andrew Oldham wrote in a 90-page opinion. “HB 20 is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way. We reject the Platforms’ efforts to reframe their censorship as speech. It is undisputed that the Platforms want to eliminate speech—not promote or protect it. And no amount of doctrinal gymnastics can turn the First Amendment’s protections for free speech into protections for free censoring.”
HB 20 “might make censors think twice before removing speech from the platforms in a viewpoint discriminatory manner.”
Judge Oldham said arguments by the social media platforms and their supporters that the law violated their First Amendment right to free speech was “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,” Judge Oldham wrote. “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.”
Judge Oldham wrote that the social media platforms “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 Fifth Circuit ruled.
“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” Judge Oldham wrote. “HB 20 is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way. The district court erred in concluding otherwise and abused its discretion by issuing a preliminary injunction.”
This is the second time the Fifth Circuit has lifted the district court’s injunction preventing the law from taking effect. The Fifth Circuit lifted the stay May 11. Twenty days later, the U.S. Supreme Court vacated the Fifth Circuit’s decision.
In dissent, Judge Leslie Southwick said he disagrees with the majority “about whether speech is involved in this case.”
“Yes, almost none of what others place on the platforms is subject to any action by the companies that own them,” Judge Southwick wrote in a 21-page dissent. “The First Amendment, though, is what protects the curating, moderating, or whatever else we call the platforms’ interaction with what others are trying to say.”
Judge Southwick wrote that HB 20’s “anti-discrimination provisions are an unconstitutional infringement on the plaintiffs’ rights to edit or remove, after the fact, speech that appears on their private platforms.”
“We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech,” Judge Southwick wrote. “None of the precedents fit seamlessly. The majority appears assured of their approach; I am hesitant. The closest match I see is caselaw establishing the right of newspapers to control what they do and do not print, and that is the law that guides me until the Supreme Court gives us more.”
“This is a difficult case,” he wrote. “We are seeking the closest analogies among the precedents. The Supreme Court will, as always, have the final word. Balance and fairness certainly would be preferable, but the First Amendment does not require it.”
Texas Associate Solicitor Ryan Baasch argued the case for the State of Texas and Texas Attorney General Ken Paxton. Lehotsky Keller partner Scott A. Keller argued the case for the Computer & Communications Industry Association and NetChoice.
The case is NetChoice v. Paxton, 21-51178.