Big Tech Censorship Rebuked by Fifth Circuit Court of Appeals

(Mile High Evening News) Spurred by a Texas law prohibiting big tech platforms from censoring speech on their platforms based on viewpoint, the United States Court of Appeals for the Fifth Circuit issued a blistering ruling that rebuked platforms who had sued to block the law’s implementation, opening the door for the Supreme Court to weigh in on whether or not companies like YouTube, Facebook, or Twitter are permitted to censor or block speech they deem objectionable.

Texas AG Ken Paxton celebrated the ruling:

Big tech platforms represented by the Computer Communications Industry Association and NetChoice sued Texas, arguing that the law represented a violation of their unenumerated First Amendment right to censor speech on their platforms and asking for the court to find the law facially unconstitutional (that is, invalid in all contexts and cases).

The 113-page opinion (which includes dissenting and partially dissenting opinions) opens up with a foundational rebuke of the platforms’ argument:

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. 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. Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

The law was put on hold in May by the Supreme Court until the Fifth Circuit issued the full ruling. The CCIA and NetChoice are expected to appeal the ruling to the Supreme Court. As it stands, the ruling represents a victory for free speech proponents and a major defeat for the censorship of big tech.

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David Morrill

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