Social-media stocks have taken a beating this year, but it’s nothing compared with the smack-down their companies have recently received in court. “We reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the Fifth U.S. Circuit Court of Appeals declared in its Sept. 16 decision upholding Texas’s anticensorship law.
The legal fight over whether states can restrict such behavior could soon be headed to the Supreme Court, as Florida last week appealed an 11th Circuit ruling that struck down its anticensorship law.
Social-media companies are also asking the justices to provide desperately needed constitutional clarity. They argue, in short, that removing user content from their platforms is an exercise of editorial judgment and expression protected by the First Amendment. Ergo, states can’t tell them they can’t censor.
Not so fast, writes the Fifth Circuit’s Judge
Andrew Oldham
for a divided three-judge panel in an excoriating 90-page opinion. Texas’ law prohibits large social-media platforms from blocking speech based on viewpoint. So users couldn’t be deplatformed by
for professing skepticism of vaccines or climate change. Nor could YouTube demonetize such videos.
The law, however, excludes speech that isn’t protected by the First Amendment, such as incitement, as well as speech that is covered by Section 230 of the Communications Decency Act—i.e., speech considered to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
Users who believe they were illegally discriminated against could sue the companies. While they wouldn’t be eligible to receive damages, they could be reinstated if they prevail. Many users would nonetheless lose if a court determines their expression is “objectionable” under Section 230’s catchall. But social-media companies wouldn’t be the final arbiters of what is objectionable.
Judge Oldham stresses that Texas’ law seeks to regulates business conduct—not speech—under the “common-carrier doctrine,” which holds that government can impose nondiscrimination obligations on businesses “affected with the public interest.” During the 19th century, states imposed common-carrier obligations on telegraph companies. “
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