On September 16th, the Fifth Circuit sent legal experts and tech workers into a furor with a ruling radical even by the standards of a court known for its conservative bent and controversial rulings. In NetChoice v. Paxton, the court upheld Texas HB 20, a bill aimed at large social media platforms which, amongst other things, subjects them to civil liability if they remove, demonetize, or otherwise moderate political expression.
Much ink has been spilled on the many issues in the logic of the opinion itself as well as the potentially disastrous effects of allowing HB 20 to go into effect. The court refers to concerns about platforms’ ability to moderate Neo-Nazi and other terrorist content as “hypothetical” and “fanciful,” despite the well-known and frequent use of social media as a tool to organize and evangelize for violent extremism. HB 20 not only opens platforms up to significant legal liability unless they allow an unstemmed tide of extremist political expression to take over their feeds, but it also creates international conflicts of laws issues with countries like Germany, where there are bans on Nazi content.
Most importantly, however, laws like HB 20, which attempt to ban content moderation by platforms, are blatantly unconstitutional. The Eleventh Circuit already recognized this in their decision on a very similar Florida bill in NetChoice v. Florida. The court attempts to avoid a circuit split by distinguishing this decision from Florida, but only managed to distinguish on details that were non-essential to the Florida holding that, in keeping with longstanding precedent, corporations have a First Amendment right to make their own editorial decisions. NetChoice, LLC v. AG, Fla., 34 F.4th 1196 (11th Cir. 2022).
The court similarly attempts to distinguish the well-established precedent of Miami Herald by claiming that platforms “exercise virtually no editorial control or judgment,” over their content because they “use algorithms to screen out certain obscene and spam-related content. And then virtually everything else is just posted to the Platform with zero editorial control or judgment.” Netchoice, L.L.C. v. Paxton, No. 21-51178, 2022 U.S. App. LEXIS 26062, at *39 (5th Cir. Sep. 16, 2022). This analysis is wrong on both a factual and legal level. Meta alone employs 15,000 human content moderators in addition to its Oversight Board, which handles appeals for content moderation decisions. And even if all of these decisions were made by algorithm, the court assumes without providing any reasoning that algorithmic decisions are not protected by the First Amendment, going against the prevailing notion that they are protected. And even if this analysis were not completely faulty, it would make HB 20, a law curtailing the ability of platforms to exert editorial control, uncontroversial and essentially null.
One of the most egregious contentions in the ruling is that plaintiff’s counsel erred in that “rather than mount[ing] any challenge under the original public meaning of the First Amendment, the Platforms instead focus their attention on Supreme Court doctrine.” Netchoice, 2022 U.S. App. LEXIS 26062, at *27. The implication here that any individual litigator or judge’s personal interpretation of the original public meaning of the Constitution should outweigh long-standing Supreme Court interpretations of the Constitution is originalism run amok. Regardless of how one feels about recent First Amendment jurisprudence, the Court’s position that corporations have First Amendment rights, including the right not to speak, has been made clear in case after case, from Citizens United, to Hobby Lobby, to Masterpiece Cakeshop. Not only is this position the strong precedent of the Court, but it is one that was mainly developed and championed by conservative judges and academics, and it was supposedly the result of studied originalist legal philosophy. Now that more corporations find themselves on the opposite side of many cultural issues from the Republican Party, the Fifth Circuit has discovered that the proper originalist take is completely the reverse of what it has long been. This is originalism not as a legal philosophy but as a thin veneer of legal analysis over nakedly political decision-making. The Supreme Court is facing a legitimacy crisis. Its willingness in recent high-profile cases to neglect stare decisis and substitute personal political feelings for good legal analysis have led to record-low trust in the Court. NetChoice presents an opportunity for the Court to demonstrate that it is not held hostage to partisan concerns and that stare decisis has not been entirely abandoned. The Court has a responsibility to rein in the Fifth Circuit, both to maintain the legitimacy of our judicial system and to avoid the likely disastrous consequences of HB 20.