Fifth Circuit Rejects First Amendment Challenge to Texas Social Media Common Carrier Law
Just released, Netchoice v. Paxton; I’m traveling and likely won’t have time to digest the 113 pages of opinions for a while, but here’s the opening from Judge Andrew Oldham’s opinion, which is a majority on most points:
A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.
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.” Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. Nort
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