A Huge Win for Free Speech [Updated]

This is seismic: a panel of the 5th Circuit Court of Appeals has upheld Texas’s new law banning viewpoint discrimination by the major social media platforms. The case is NetChoice v. Paxton, and the opinion is by Judge Andrew Oldham. Oldham is a brilliant guy with a gilt-edged pedigree. He also was once the General Counsel to Texas Governor Greg Abbott.

The Texas law is similar to the one I drafted for the Minnesota legislature (which has not yet been enacted), in that it is couched as a ban on viewpoint discrimination. It is different in that it explicitly labels the major platforms as common carriers, and it also does not provide for statutory damages.

The Court’s majority opinion is long, detailed, and to my mind persuasive. At times, it is almost mocking in its characterizations of the Platforms’ (as those parties are collectively referred to) legal positions. For example, at the beginning of the opinion:

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.

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.

That is, of course, exactly what the Democratic Party has in mind, and already it is beginning to come to pass.

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.

This is the court’s summary of its holdings:

The Platforms contend that Section 7 of HB 20 [the Texas statute]is facially unconstitutional. We disagree. We (A) first reject the Platforms’ facial overbreadth challenge because Section 7 does not chill speech; if anything, it chills censorship. Then we (B) turn to the First Amendment’s text and history, which offer no support for the Platforms’ claimed right to censor. Next, applying Supreme Court precedent, we (C) hold that Section 7 does not regulate the Platforms’ speech at all; it protects other people’s speech and regulates the Platforms’ conduct. Our decision (D) is reinforced by 47 U.S.C. § 230, which reflects Congress’s judgment that the Platforms are not “speaking” when they host other people’s speech. Our decision (E) is still further reinforced by the common carrier doctrine, which vests the Texas Legislature with the power to prevent the Platforms from discriminating against Texas users. Finally, even if all of that’s wrong and Section 7 does regulate the Platforms’ speech, it (F) satisfies the intermediate scrutiny that applies to content-neutral rules.

It is noteworthy that the court finds that Section 230 of the Communications Decency Act, which the social media giants seem to think protects them from every form of liability from auto accidents to rigging elections, cuts in favor of the Texas law. I think the court is right.

From the court’s discussion of the common carrier issue:

The common carrier doctrine is a body of common law dating back long before our Founding. It vests States with the power to impose nondiscrimination obligations on communication and transportation providers that hold themselves out to serve all members of the public without individualized bargaining. The Platforms are communications firms of tremendous public importance that hold themselves out to serve the public without individualized bargaining. And Section 7 of HB 20 imposes a basic nondiscrimination requirement that falls comfortably within the historical ambit of permissible common carrier regulation.
Texas permissibly determined that the Platforms are common carriers subject to nondiscrimination regulation. That’s because the Platforms are communications firms, hold themselves out to serve the public without individualized bargaining, and are affected with a public interest.
The Platforms nonetheless contend that they cannot be regulated as common carriers because they engage in viewpoint-based censorship—the very conduct common carrier regulation would forbid. This contention is upside down. The Platforms appear to believe that any enterprise can avoid common carrier obligations by violating those same obligations. That is obviously wrong and would rob the common carrier doctrine of any content.

The court echoes the concern I have often expressed that network effects may make the main social media platforms natural monopolies:

It’s also true that each Platform has an effective monopoly over its particular niche of online discourse. Many early telephone companies did not have legal monopolies, but as a practical matter, they monopolized their geographic area due to the nature of the telephone business. See id. at 238. Likewise with the Platforms: While no law gives them a monopoly, “network effects entrench these companies” because it’s difficult or impossible for a competitor to reproduce the network that makes an established Platform useful to its users.

The opinion is well worth reading in its entirety. This case is destined, obviously, for the Supreme Court, but probably not yet. It probably will take a case in which the Texas law has actually been applied against a platform to frame the issues for a Supreme Court appeal. (The Supreme Court has already gotten involved, to a degree. The district court granted a preliminary injunction against enforcement of the Texas statute. The 5th Circuit granted Texas’s motion to stay that preliminary injunction. The platforms petitioned the Supreme Court, which vacated the 5th Circuit’s stay.)

This case reminds us how important it is that the federal courts have remained bipartisan. The social media platforms have all pledged their loyalty to the Democratic Party, and if the Democrats controlled the Supreme Court the platforms’ ability to censor conservative content would undoubtedly be upheld. But in our present Court, free speech and the First Amendment will get a fair hearing.

UPDATE: A perceptive reader, himself a distinguished jurist, points out that I overlooked a nuance in the court’s three opinions:

I don’t know you personally but I am a regular reader of Powerline and a fan. I noticed what I think is an error in this post: The common-carrier part of the opinion is not joined by Judge Jones, who otherwise concurred, or Judge Southwick, who largely dissented, so it reflects only the view of Judge Oldham–not an opinion of the Fifth Circuit. Too bad, but I think that’s the way it is.

Thanks for the correction. These issues will make their way to the Supreme Court, and I am not sure that the common carrier rubric is the best avenue to resolving them. But the correction is welcome.

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