The reactionary, right-wing Fifth Circuit today published an opinion today which ignores many long years of traditional interpretations of the First Amendment. The decision essentially says that large social media platforms (of 50 million monthly active users or more) do not have the right to enforce terms of service, such as prohibitions against advocating violence, and promoting hate speech.
From the opinion:
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.” 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.
This ruling is in reference to Texas statue HB 20, which regulates large social media platforms (more than 50 million monthly active users (Facebook, Twitter, Youtube, and so on).
For those large social media platforms, it essentially says that the government can force a private entity to allow users to post any speech they want on servers which the private entity is paying for. Platforms no longer have the right to moderate the speech of their users.
they've adopted an interpretation of the 1st Amendment that has been rejected by courts in this country, including the supreme court, more times than I can count –– and they've dressed up their bullshit in the rhetoric of individual liberty.
The Fifth Circuit has dropped another opinion that makes me question why I bother being a lawyer.I like how a corporation has the religious right to decide what health benefits to provide to its employees, but not the right to prohibit racist speech.Fascinating stuff.
It's not just that I haven't seen any sort of real plan for what to do about the MAGA judiciary from the Biden Administration or Democratic leadership in either the House or Senate, it's that only a small handful (e.g.@SenWhitehouse) even acknowledge that there's a problem!
This backwards ruling effectively destroys free speech while claiming to protect it. It will serve the interests of those promoting intolerance. Who knows how the Supreme Court will rule on this, but I don’t have high hopes.
EDIT: This is another example of how the conservative ideal of “socialize the cost, privatize the profit” is seeping into more aspects of everyday life.
“Religious Freedom” allows entities and individuals to fail to perform aspects of their job which they say conflicts with their “religious beliefs”. The religious person has to do nothing, and the inconvenienced one has to pay a cost in time, effort and energy to get what they want.
This ruling is more of the same thing of socializing cost and privatizing profit. The ones paying the bills for the servers have to bear the cost of supporting posts they do not endorse, and the ones making the posts have to do nothing.
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