Fifth Circuit Deals Huge Legal Blow To Social Media Censorship, Upholds Texas Law Banning It

 The Fifth Circuit Court of Appeals upheld a Texas law prohibiting social media companies from censoring speech on the basis of political viewpoint.

In a decision Friday, a panel of three judges on the Fifth Circuit upheld the Texas law, vacating an injunction from the Western District of Texas.

In the 90-page ruling, the Fifth Circuit took aim at censorship by social media platforms, debunking the claim that the platforms would have their free speech rights restricted by the law. Instead, the Court found that the law would stop censorship conduct and protect the rights of individual users to speak freely on the platform.

“A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker,” Fifth Circuit Judge Andrew S. Oldham wrote in the opinion of the court. “The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances. In urging such sweeping relief, the platforms offer 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.”

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” Oldham added.

The court first rejected the social media platforms’ claim that the law is too broad, saying that the law does not chill speech, but chills censorship instead. “HB 20’s prohibitions on censorship will cultivate rather than stifle the marketplace of ideas that justifies the overbreadth doctrine in the first place,” Oldham wrote.

Applying Supreme Court precedent, the court further found that the law does not regulate the speech of the platforms at all, neither compelling them to speak nor restricting them from speaking; instead, it protects the speech of users, and regulates platforms’ conduct as it relates to that speech. “[C]ensorship is at best a form of expressive conduct, for which the overbreadth doctrine provides only ‘attenuate[d]’ protection,” Oldham wrote.

The court cited Section 230, saying that the platforms are not “speaking” when they host other people’s speech. The court also rejected the platforms’ claims of “editorial discretion” on two bases: first, the court noted that unlike newspapers, social media platforms do not claim responsibility for the content they host, and are in fact protected from such liability by Section 230. Second, newspapers engage in content moderation before it it published; platforms, on the other hand, engage in censorship after users publish their content. Furthermore, the Fifth Circuit cited the common carrier doctrine, which empowers Texas to prevent the platforms from discriminating against users who live in Texas.

“We reject the Platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” the Fifth Circuit concluded. “The Platforms are not newspapers. Their censorship is not speech. They’re not entitled to pre-enforcement facial relief. And HB 20 is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way.”

The court vacated the district court’s injunction on the law, and remanded it back to the Western District of Texas for further proceedings in light of the opinion.