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Appeals court already under fire for upholding Texas no-content-moderation law

Big Tech forbidden from taking down 'viewpoint-based' posts no matter how awful but lawful

The US Fifth Circuit Court of Appeals on Friday said social media platforms are obligated to carry lawful but awful speech, rejecting the entreaties of tech trade groups to block Texas's social media law.

"Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say," the three-judge appeals panel declared in its opinion.

Last September, Texas Governor Greg Abbott (R) signed a statute titled House Bill 20 that forbids large social media platforms from censoring speech based on the viewpoint of the speaker. Posts deemed awful or harmful can not be taken down if they lawful and it can be argued the material is based on a viewpoint.

The law was to take effect last December but NetChoice and CCIA, two tech industry trade groups, sued to block the legislation, claiming it violates free speech protection guaranteed under the First Amendment of the US Constitution. Being able to decide what's allowed on one's website is a free speech right, essentially, the argument went.

The groups won a preliminary injunction that winter halting the law but that was stayed in May when two of the three judges on the all Republican appeals court panel sided with the State of Texas.

Now the Fifth Circuit has rejected the tech group's request for redress under the First Amendment.

"In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment," the ruling [PDF] stated. "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 case now heads back to the Western District of Texas where it was initially filed. And the Texas law can now be applied; to prevent that, tech industry groups fighting the law have to seek either an en banc Fifth Circuit review (all of the judges) or the intervention of the US Supreme Court.

Critics of the decision contend the appellate judges don't know what they're talking about.

"Prohibiting social media sites from taking down harmful content would mean more hate speech, harassment, and misinformation online," said Adam Kovacevich, CEO of Chamber of Progress, a business advocacy group, in a statement. "Not only is that dangerous, but it throws out years of legal precedent affirming that online platforms have a First Amendment right to decide what appears on their sites."

Berin Szóka, an attorney with advocacy group TechFreedom, slammed the opinion.

"The Fifth Circuit concludes that social media aren't like newspapers because they hold themselves out as NOT editing user content," he said via Twitter. "But ALL platforms have ALWAYS made clear that they won't carry content that violates their community standards."

"Even for such a badly reasoned opinion, this is just embarrassing," he continued. "The court is saying that the platforms getting Section 230 protection against liability somehow means they don't have First Amendment rights.

"Literally Day One of Law School: statutes can't trump the Constitution."

Even for such a badly reasoned opinion, this is just embarrassing ... Day One of Law School: statutes can't trump the Constitution

What makes the opinion particularly problematic is that it accepts the Texas legislature's view that social media platforms are common carriers – a designation given to utilities such as telephone companies and the US Postal Service that restricts content-based interventions.

Social media platforms are not recognized as common carriers, but their size and market domination has some pushing to have them treated as such.

The issue is intertwined with conservative interest in reforming Section 230 of the Communications Decency Act, because conservative political communication gets flagged as misinformation more often than the opposition messaging.

Section 230 shields internet companies from liability for content posted by users provided they make a good faith effort to deal with illegal content and enforce platform rules. Without it, it's doubtful social media platforms would exist; a traditional editorial regime would only distribute content deemed unlikely to attract a lawsuit.

Attorney Ken White, writing as @popehat on Twitter, put a question to the Fifth Circuit that underscores the perils of the court's reasoning.

"If a state law dictating how a social media site moderates is permissible and doesn't violate the site's First Amendment rights, what happens when California passes a law with requirements that contradict Texas' requirements?" he asked.

Jonathan D. Urick, an attorney with the US Chamber Litigation Center, via Twitter, said, "This an extremely disappointing decision that, contrary to the opinion, turns the First Amendment on its head. I’m confident that [the US Supreme Court] will reverse." ®

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