5th Circuit: Big Tech Can’t Use 1st Amendment To Censor Speech

On Friday, the Fifth Circuit released its decision in NetChoice v. Paxton, a case a trade association representing the big social media companies filed against a new communications law in the State of Texas. The law held that social media companies cannot censor views with which they disagree (invariably, views opposing Democrat actions and ideas). The tech companies argued that it violated their corporate free speech right to censor people on their platforms. The Fifth Circuit strongly disagreed, striking a huge blow in favor of Free Speech in America.

Tech companies used to be free speech zones. However, once they inveigled just about everyone in America away from their usual means of communication and onto their platforms—that is, getting them away from the traditional public square in favor of their own squares—the companies began to clamp down on any speech with which they disagreed. Over the years, they’ve disagreed with (and censored) people supporting Trump, opposing the Russia hoax, challenging the COVID narrative (everything from masks to hydroxychloroquine to lockdowns), opposing the transgender fiction, and wanting to learn about Hunter Biden’s hard drive, to name just a few disfavored views.

BREAKING: I just secured a MASSIVE VICTORY for the Constitution & Free Speech in fed court: #BigTech CANNOT censor the political voices of ANY Texan! The 5th Circuit “reject[s] the idea that corporations have a freewheeling First Amendment right to censor what people say. pic.twitter.com/UijlzYcv7r

— Attorney General Ken Paxton (@KenPaxtonTX) September 16, 2022

As you’ve gathered, the censorship only flowed one way: Big tech silenced anything that challenged a Democrat narrative. We’ve since learned that this was not a coincidence. Aside from their own loathing of all things Republican, the tech companies took marching orders from the federal government, whether it was working with the White House directly (which allowed the White House to bypass the First Amendment), believing the FBI’s false claim that Hunter Biden’s hard drive was Russian information, or (possibly) spontaneously passing private messages to the FBI. Mark Zuckerberg also spent $400 million privately funding election officials, dangerously blurring the lines between ostensibly impartial government agencies and private monies, and has made clear that he intends to game future elections for Republicans.

Texas decided to challenge the way the tech tyrants used their supremacy over the public square to silence speech. The legislature enacted HB 20, a statute regulating social media platforms with more than 50 million monthly users (in other words, the bug guys, like Facebook, Twitter, and YouTube).

The statute holds that these social media platforms are common carriers, affecting the public interest, and having control over the marketplace of ideas. As such, said that statute, these platforms may not censor viewpoints, either by preventing people from expressing their viewpoints or preventing them from seeing others’ viewpoints—provided that the views expressed do not violate laws (child sexual exploitation, threatening violence, etc.). From a Free Speech perspective, it’s a very good law.

The tech companies had different ideas. In NetChoice v. Paxton, acting through trade associations, they argued that Free Speech has a very different meaning than actually allowing American citizens to speak freely in the internet arena, which has become the 21st-century public square. The tech plaintiffs advanced the novel theory that the constitutional right to Free Speech enshrined in the First Amendment includes an unwritten corollary that corporations controlling the publics’ means of communication have the right to silence such speech.

The court’s decision is 113 pages long, so I haven’t read it in any detail yet. As Reason noted, however, the introduction goes a long way to summing up just how good a ruling it is:

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, 137 S. Ct. 1730, 1737 (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.

That’s exactly the right argument—and I say that with no small amount of smugness because it’s what I’ve been saying for years. Presumably, the tech companies will appeal the decision to the Supreme Court. However, the tightly argued logic I’ve seen as I’ve leafed through it, along with the incontestable constitutional principles and the uncontested facts strongly militate in favor of the Fifth Circuit’s position—that is, if one has any interest in maintaining America as a nation in which we honor the People’s inherent rights as set out in the Constitution’s first ten amendments.