Updates: After the social media platforms filed an emergency application with the U.S. Supreme Court, the Reporters Committee, joined by a coalition of six organizations, filed a friend-of-the-court brief on May 17, 2022, urging the Court to block the social media censorship law. On May 31, 2022, the Supreme Court granted the platforms’ application, putting the law on hold while the legal battle continues in the lower courts.
As readers of this newsletter know, the Reporters Committee has filed friend-of-the-court briefs in a number of cases where state efforts to regulate new digital platforms also threaten traditional press freedoms. So far, those statutes have run aground when tested against the First Amendment. Last week, though, Texas’s bid to enforce its vision of editorial fairness won a warm reception in the U.S. Court of Appeals for the Fifth Circuit. In a one-sentence order, the court let Texas’s law go into effect — a ruling that could reshape online speech nationwide.
You’ll have to forgive us if this newsletter is out-of-date when it lands in your inbox; the ruling was issued just two days after the Fifth Circuit heard oral argument, an argument we’d been planning to recap for readers. Safe to say events are now moving fast and will continue to do so.
As we explained in the brief we filed in the case, Texas’s bill violates the First Amendment several times over. The state’s theory of why it can enforce “neutrality” on large platforms lacks any sort of limiting principle and could well erode editorial control in other media. A federal district court agreed, swiftly enjoining the statute. Texas in turn appealed and won the favor of the Fifth Circuit. While we can’t tell you why the court thinks the law is constitutional — the order letting it move forward contains no explanation — the oral argument offers some clues.
There, Judge Andrew Oldham — who before joining the bench was Abbott’s general counsel — had the harshest words for the platforms’ attorney. Calling their arguments “extraordinary,” he likened the social media firms’ position to Verizon claiming a First Amendment right to listen in on phone conversations and cut short any it doesn’t like. That would be extraordinary, but as a brief from the advocacy group TechFreedom explained, services like telephony that do no more than carry information — often over scarce channels — have always been subject to different rules than services like social media firms that “constantly process information in new ways.”
Judge Oldham and Judge Edith Jones also seemed to be of the view that platforms could enjoy either First Amendment rights or the protections of Section 230 of the Communications Decency Act, but not both. That attitude gets the statute backwards. Section 230 was intended to overrule a decision that put platforms to a choice between moderating nothing and liability for everything users post — and by removing that stark incentive, Congress intended to encourage internet services to exercise discretion about what should and should not appear on their platforms.
The discussion was riddled with other troubling lines of inquiry, as when Judge Jones suggested that “a lot of what you call moderating is commercial speech” because the platforms’ curation has a profit motive. (That suggestion is clearly wrong under current law; as the Supreme Court explained in New York Times v. Sullivan, that a speaker has a mix of commercial and non-commercial motives “is as immaterial in this connection as is the fact that newspapers and books are sold.”) It wasn’t easy to come out of the discussion bullish on the platforms’ prospects, and the court’s decision to stay the injunction confirms that those anxieties were well-grounded.
It’s difficult to imagine this being the last word on the issue. The statute also prohibits restricting a person’s access to services “based on their geographic location in this state,” an obvious bid to prevent the platforms from pulling out of Texas in response to this legislation. As a result, the Fifth Circuit’s ruling could reshape what these services look like everywhere — all without a word of reasoning offered in support of that outcome. If NetChoice asks the Supreme Court to take up such a consequential First Amendment question, it will face obvious pressure to do so.
We’ll keep a close eye on this case however it proceeds.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.