Federal Court Upholds Texas Social Media Bill, Rules Corporations Do Not Have ‘Right’ To Censor

Editors’ Note: We are not sure how far the Fifth Circuit Courts’ opinions will go or whether this must finally be decided by The Supreme Court. However, it seems to be a move in the right direction. The Court recognizes that when private companies act at the behest of the government, they in essence are acting as agents of the government. Since the Constitution instructs that Congress shall make no law abridging the freedom of speech and press, it would seem government agents are barred from the same action. This may have implications beyond speech. A recent concerning pattern is for government, unable to pass legislation, makes an end run around democratic processes and enlists private companies to do their dirty work. For example, banks act at the behest of the government and discriminate in lending. Credit card companies want to track firearms purchases. Again, private companies are acting at the behest of the government and doing things that the government is prohibited from doing. Twitter and Facebook operate are more like common carriers, like phone companies. Anyone can use their phone and the companies cannot tell you what you may or may not say in your conversation. Yet, news and opinion outlets like The Prickly Pear, can and do select points of view. Social media companies cannot be both common carriers and private journalists at the same time. Additionally, many of these companies are defacto monopolies, which destroys the equilibrating function of competition. Some entities like banks, are highly regulated and thus easily intimidated by the government. In essence, they are not voluntary agents working for the government. In the short term, this decision may help conservatives during this election cycle because Big Tech may not be able to be so successful at suppressing our viewpoints as they were the last election cycle.

 

The U.S. Fifth Circuit Court of Appeals preserved Texas state law Friday that would stop large social media platforms from restricting particular opinions.

Texas’ HB 20 was signed last year and generally prohibits platforms with over 50 million monthly U.S. users from censoring them based on their viewpoints. The Computer Communications Industry Association (CCIA) and the NetChoice organization, representing social media companies, argued that aspects of the law were unconstitutional but failed to convince the court.

“In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment,” the court’s majority decision said. “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.” (RELATED: Facebook Spied On Conservative Users’ Private Messages, Fed ‘Leads’ To The FBI: REPORT)

The appeals court must give the district court that previously decided the case written instructions for the law to become effective, according to Politico. A 5-4 May U.S. Supreme Court ruling had halted the law from going into force after an emergency request by the CCIA and NetChoice.

Appealing Texas Attorney General Ken Paxton celebrated the circuit court’s decision Friday, tweeting, “#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.”

CCIA President Matt Schruers decried the ruling, stating, “Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk,” according to The Hill.

The Supreme Court could still be asked to directly consider the law’s validity, the outlet reported.

In May, the 11th Circuit Court of Appeals upheld a block on enforcing parts of Florida Senate Bill 7072, which would require social media platforms to explain the reasons for individual acts of supposed censorship, de-platforming, and shadow banning and stop them from censoring a “journalistic enterprise based on the content of its publication or broadcast,” according to The National Law Review.

“We are disappointed that the Fifth Circuit’s split decision undermines First Amendment protections and creates a circuit split with the unanimous decision of the Eleventh Circuit,” NetChoice Vice President and General Counsel Carl Szabo said in a Friday press release. “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.”

NetChoice declined the Daily Caller News Foundation’s request for comment. The CCIA did not immediately respond to the DCNF’s request for comment.

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This article was published by The Daily Caller News Foundation and is reproduced with permission.