It’s been a busy week in the judiciary. While the media has focused largely on legal developments in “Trumpworld” (where the Eleventh Circuit allowed the government to continue reviewing classified materials seized at Mar-a-Lago and New York filed suit against the Trump family), the tech policy community is poring over the Fifth Circuit’s 113-page decision upholding Texas’s social media law. The court’s decision was not unexpected given the panel’s hostility toward the plaintiffs at oral argument and its earlier decision to stay the district court’s injunction of the law. But its ruling contradicts well-established First Amendment principles and, coupled with the Eleventh Circuit’s injunction against Florida’s similar law, sets up a Supreme Court showdown in the near future.
As we’ve discussed before, Texas’s HB20 prevents large social media companies from “censoring” user posts on the basis of viewpoint. NetChoice, a trade organization representing companies affected by the bill, challenged the law, as it did a similar statute in Florida. While the district court enjoined the law as likely violating the First Amendment, the Fifth Circuit stayed the injunction in a terse, one-sentence order last May. NetChoice sought emergency review at the Supreme Court, which dissolved the stay and remanded the case back to the Fifth Circuit.
The case raises important questions about how free speech is protected online. Texas contends that HB20 is necessary to protect user speech from interference by social media companies. NetChoice, on the other hand, argues that the law interferes with the companies’ own First Amendment right to moderate the messages disseminated on their sites. The court rejected NetChoice’s argument, holding that when a company like Twitter chooses to remove a user’s post for violating a site’s content guidelines, the company is not engaged in speech but in conduct, acting to remove messages with which it disagrees. The court ruled that this censorship is not First-Amendment–protected expression.
This rhetorical move, reframing Twitter’s moderation as unprotected conduct rather than constitutionally protected speech, is crucial to the Fifth Circuit’s decision. But it flies in the face of decades of Supreme Court authority. In Miami Herald v. Tornillo, the Court ruled that newspapers have a First Amendment right of editorial control to determine which messages are disseminated in their pages. In that case, the Court struck down a right-of-reply statute that would have forced newspapers to carry both sides of certain political issues. Like HB20, that statute was concerned that, because newspapers are conduits of information to the public, their decisions to discriminate on the basis of viewpoint could harm speech values. While acknowledging that risk, the Court nonetheless recognized that the choice of which messages to carry, which to refuse, and how to organize them reflected the newspaper’s own speech, even if the content in question was written by others. Subsequent decisions extended this right of editorial control beyond newspapers to include decisions about which messages get included in utility bill inserts or which groups can participate in a parade.
Online content moderation fits comfortably in this frame. Like newspapers of yore, companies such as Facebook and Twitter package speech for user consumption. Their business models involve selecting and organizing content to provide a curated stream of information for individual users. Those decisions are governed by terms of service and community standards that reflect the company’s values. And those values differ by site: Facebook aggressively removes violent and pornographic content, while Twitter is more lenient about sexual content but shields explicit messages behind warning labels. The selection process of what content goes into the feed—and where—is indistinguishable from “the choice of material to go into the newspaper . . . and treatment of public issues and public officials.” Whether “fair or unfair,” the Court explained in Tornillo, such decisions “constitute the exercise of editorial control and judgment.”
The Fifth Circuit focuses on PruneYard Shopping Center v. Robins, which upheld a state law protecting a protester’s right to pamphleteer at privately owned shopping malls. But this holding was expressly premised on the fact that the pamphleteer does not interfere with the mall’s “normal business operations” and the mall owner retains the power to impose reasonable time, place, and manner restrictions. Here, however, curation of speech is Twitter’s normal business operation, and HB20 explicitly interferes with its ability to place reasonable restrictions on user content. PruneYard is inapposite.
The Fifth Circuit’s decision to uphold Texas’s social media law contrasts sharply with the Eleventh Circuit’s invalidation of a similar Florida law earlier this year. Unless reversed by the en banc process, this decision will likely fast-track Supreme Court review of how the First Amendment applies online. One thing is certain: Whether right or wrong, the Fifth Circuit’s decision is unlikely to be the last word on this important topic.
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