The 5th Circuit Court of Appeals on Friday upheld a controversial Texas social media law that bars companies from removing posts based on a person’s political ideology, overturning a lower court’s decision to block the law and likely setting up a Supreme Court showdown over the future of online speech.
The ruling could have wide-ranging effects on the future of tech regulation, giving fresh 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 from the 11th Circuit Court of Appeal and lower courts, and tech industry groups are likely they would 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. Judge Leslie H. Southwick, a George W. Bush appointee, 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 doesn’t guarantee corporations the right to “muzzle speech.” The Texas law, he wrote, “does not chill speech; if anything, it chills censorship.”
The ruling criticized the tech industry’s arguments against the law, saying that under the companies’ logic, “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.”
An appeal of the decision could force the Supreme Court, where conservatives have a majority, to weigh in on internet regulation, which has become an increasingly politicized issue since the 2016 election. Democrats have called for new limits on the companies that would block the proliferation of harmful content and misinformation on the platforms, while conservatives have argued that the companies have gone too far in policing their sites, especially after the companies’ 2021 decision to ban Trump following the Jan. 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 social media content moderation policies. Many state legislatures have adjourned for the year, so tech lobbyists are bracing for more activity in 2023.
Earlier this week, California Gov. Gavin Newsom (D) signed a bill into law that forces large social networks to make public their policies for how posts are treated, responding to criticism that posts glorifying violence and hatred are being amplified by the platforms.
“If the Supreme Court doesn’t weigh in, it’s going to be increasingly difficult to operate a nationwide social media company because it could be navigating state rules that differ or even conflict,” said Jeff Kosseff, a cybersecurity law professor at the United States Naval Academy.
Earlier this year, the Supreme Court stopped 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 for their decision, which is common in such requests.
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 runs counter to First Amendment precedent and warned that it could result in harmful posts staying on social networks.
“Little could be more Orwellian than the government purporting to protect speech by dictating what businesses must say,” said Matt Schruers, president of the Computer & Communications Industry Association. “The Texas law compels private enterprises to distribute dangerous content ranging from foreign propaganda to terrorist incitement, and places Americans at risk.”
Netchoice, another industry group that has challenged the Texas and Florida laws alongside CCIA, echoed those concerns about “awful and offensive content” remaining online.
“We remain convinced that when the U.S. Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms and apps,” said Carl Szabo, Netchoice vice president and general counsel.
Constitutional law experts also largely criticized Oldham’s opinion. Eric Goldman, a law professor at Santa Clara University, said it is a “terrible opinion” riddled with factual errors.
“It’s a gross misunderstanding of the word censorship,” he said. “Censorship is something that governments do.”
Earlier this year, the 11th Circuit Court of Appeals blocked major provisions of a social media law that had been passed by Florida’s Republican-led legislature, saying they infringed on corporations’ First Amendment rights. The state of Florida is widely expected to appeal that decision.
In the 5th Circuit 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 businesses while the Texas law targets actions against anyone over their political viewpoints. He wrote he disagreed with the way that court 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 to social networks.
“I don’t see how you could have both of these rulings out there without having resolution from the Supreme Court,” Kosseff said.
Meanwhile, conservative regulators took a victory lap. Republican Federal Communications Commissioner Brendan Carr, who has emerged as a major critic of big social media companies, called the decision a “Big court win in the effort to end Big Tech’s unchecked censorship.”
And Texas Attorney General Ken Paxton (R) called the court’s decision a “MASSIVE VICTORY” for free speech on Twitter.
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
Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University, said there are difficult questions for the courts to grapple with.
“It is not obvious exactly how analog-era First Amendment law applies, or should apply, to digital-era communications platforms,” he said. “Unfortunately, this opinion doesn’t present those questions clearly, let alone answer them.”
Naomi Nix and Will Oremus contributed reporting.