The U.S. Court of Appeals for the 5th Circuit on Friday upheld a controversial Texas social media law that prohibits companies from removing posts based on a person’s political ideology, overturning the decision of a lower court to block the law and likely set up a Supreme Court showdown over the future of online speech.
The ruling could have far-reaching effects on the future of tech regulation, giving new ammunition to conservative politicians who have alleged that major tech companies are silencing their political speech.
But the decision diverges from precedent and recent rulings by the 11th Circuit and lower courts, and tech industry groups are likely to appeal.
Friday’s opinion was written by Judge Andrew Stephen Oldham, who was nominated to the 5th Circuit by former President Trump. He was joined by Judge Edith Jones, a Reagan appointee. Justice Leslie H. Southwick, appointed by George W. Bush, concurred in part and dissented in part.
In the opinion, Oldham wrote that while the First Amendment guarantees every person’s right to free speech, it does not guarantee corporations the right to “bite speech.” The Texas law, he wrote, “does not chill speech; in any case, it cools the censorship”.
The ruling criticized the tech industry’s arguments against the law, saying that under the companies’ logic, “email providers, cell phone companies and banks could terminate the accounts of anyone who sends a email, make a phone call, or spend money in support of a disfavored political party, candidate, or business.”
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An appeal of the decision could force the conservative-majority Supreme Court to weigh in on internet regulation, which has become an increasingly politicized issue since the 2016 election. Liberals have called for new limits to companies that would block the proliferation of harmful content and misinformation on the platforms, and conservatives have argued that the companies have gone too far in policing their sites, especially after the companies’ decision in 2021 to ban following Trump . the January 6 attacks on the Capitol.
In an analysis shared with The Washington Post in July, the industry group Computer & Communications Industry Association, one of the groups that challenged the Texas law, identified more than 100 bills in state legislatures aimed at regulating the policies moderation of the content of social networks. Many state legislatures have adjourned for the year, so tech lobbyists are gearing up for more activity in 2023.
Earlier this week, California Gov. Gavin Newsom (D) signed a bill that would require major social networks to make public their policies on how posts are treated, responding to criticism that the platforms expand the publications that glorify violence and hatred.
“If the Supreme Court doesn’t step in, it will become increasingly difficult for a social media company to operate nationally because it could be navigating state rules that differ or even conflict,” said Jeff Kosseff, a professor of cybersecurity law. to the United States. Naval Academy
Earlier this year, the Supreme Court blocked the Texas law from taking effect in a 5-4 decision, responding to an emergency request from tech industry trade groups. However, the judges did not explain the reasoning behind their decision, which is common in such petitions.
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In their ruling, the 5th Circuit judges agreed with Texas that social media companies are “common carriers,” like phone companies, that are subject to government regulations because they provide essential services. Conservatives have long made this argument, which has resonated with at least one Supreme Court justice, Clarence Thomas, who has written that there are parallels between social media companies and phone companies.
Tech industry groups and legal experts warned that the 5th Circuit’s decision flies in the face of First Amendment precedent and warned that it could result in harmful social media posts being upheld.
“Little could be more Orwellian than the government trying to protect speech by dictating what companies have to say,” said Matt Schruers, president of the Computer and Communications Industry Association. “Texas law forces private companies to distribute dangerous content ranging from foreign propaganda to incitement to terrorism, and puts Americans at risk.”
NetChoice, another industry group that has challenged the Texas and Florida laws along with the CCIA, echoed those concerns about the “horrible and offensive content” that remains online.
“We remain confident that when the United States Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms and apps,” said Carl Szabo, vice president and general counsel of NetChoice.
Constitutional law experts were also largely critical of Oldham’s opinion. Eric Goldman, a law professor at Santa Clara University, said it’s a “terrible opinion” full of factual errors.
“It’s a serious misunderstanding of the word ‘censorship,'” he said. “Censorship is something governments do.”
Earlier this year, the 11th Circuit Court of Appeals blocked key provisions of a social media law that had been passed by Florida’s Republican-led legislature, saying they infringed on the rights of the First Amendment of corporations. The state of Florida is expected to appeal that decision.
In the 5th Circuit’s opinion, Oldham wrote that the Texas and Florida laws differ in key ways because the Florida law narrowly targets speech by political figures and journalistic enterprises, while the Texas law targets to actions against anyone over their political views. He wrote that he disagreed with how the 11th Circuit interpreted previous Supreme Court rulings related to “editorial discretion,” or the right of media companies to decide what content they carry and whether that applies in social networks.
“I don’t see how you could have these two rulings without having a Supreme Court ruling,” Kosseff said.
Meanwhile, conservative regulators took a victory lap. Republican federal communications commissioner Brendan Carr, who has become a leading critic of the big social media companies, called the decision “a major judicial victory in the effort to end Big Tech’s unchecked censorship “.
And Texas Attorney General Ken Paxton (R) called the court’s decision a “HUGE VICTORY” for free speech on Twitter.
BREAKING: Just scored a HUGE VICTORY for the Constitution and Free Speech in federal court: #BigTech CANNOT censor the political voices of ANY Texan! The 5th Circuit “rejects[s] the idea that corporations have a free First Amendment right to censor what people say. pic.twitter.com/UijlzYcv7r
— Attorney General Ken Paxton (@KenPaxtonTX) September 16, 2022
Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University, said there are difficult issues to deal with in court.
“It’s not obvious exactly how analog-era First Amendment law applies, or should apply, to digital-era communications platforms,” he said. “Unfortunately, this opinion does not present these questions clearly, let alone answer them.”
Naomi Nix and Will Oremus contributed to this report.