Fifth Circuit upholds Texas social media law

The US Court of Appeals for the Fifth Circuit on Friday upheld a controversial social media law in Texas that would ban companies From removing posts Based on a person’s political ideology, overturning a lower court’s decision to block the law, it is likely to create a showdown before the Supreme Court over the future of online discourse.

The ruling could have wide-ranging implications for the future of tech regulation, giving new ammunition to conservative politicians who have claimed big tech companies are silencing their political rhetoric.

But the decision differs from previous and recent rulings of the Eleventh Circuit and lower courts, and tech industry groups are likely to appeal.

Friday’s opinion was written by Judge Andrew Stephen Oldham, who was nominated by President Donald Trump for the Fifth Circuit. He was joined by Judge Edith Jones, Reagan’s appointee. Justice Leslie H. Southwick, appointed by George W. Bush, partly agreed and partly dissented.

In the opinion, Oldham wrote that while the First Amendment guarantees everyone’s right to free speech, it does not guarantee corporations the right to “silence speech.” He wrote that Texas law “doesn’t make the cold. If anything, it discourages censorship.”

The ruling criticized the tech industry’s arguments against the law, saying that under corporate reasoning, “email providers, mobile phone companies, and banks can cancel the accounts of anyone who emails, makes a phone call, or spends money in support of an unsolicited political party, candidate, or company.” .

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An appeal of the decision could force the Supreme Court, where conservatives have a majority, to sway internet regulation, which has become an increasingly politicized issue since the 2016 election. Liberals have called for new restrictions on companies that would prevent the spread of harmful content and misinformation on the platforms, and argued Conservatives say companies have gone too far in monitoring their sites, especially after the companies’ 2021 decision to ban Trump’s post-Trump spread. January 6 attacks on the Capitol.

In an analysis shared with The Washington Post in July, the Computer Industry and Industrial Communications Group, one of the groups that challenged Texas law, identified more than 100 bills in state legislatures intended to regulate social media content moderation policies. Several state legislatures have been postponed for the year, so tech lobbyists are bracing for more activity in 2023.

Earlier this week, California Governor Gavin Newsom (D) Occurred A bill would force major social networks to announce their policies on how they handle posts, responding to criticism that posts glorifying violence and hate are amplified by the platforms.

“If the Supreme Court does not take a view, it will be increasingly difficult to operate a nationwide social media company because it may deal with state rules that differ or conflict,” said Jeff Kosseff, a professor of cybersecurity law in the United States. Naval academy.

Earlier this year, the Supreme Court blocked the Texas law from becoming effective in a 5-4 decision, in response to an emergency request from tech industry trade groups. However, the judges did not explain the reasons for their decision, which is common in such requests.

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In their ruling, the Fifth Circuit judges agreed with Texas that social media companies are “public telecommunications companies,” like phone companies, that are subject to government regulations because they provide essential services. Conservatives have long made this argument, and it has resonated with at least one Supreme Court justice, Clarence Thomas, who wrote That there are parallels Between social media companies and phone companies.

Tech industry groups and legal experts have warned that the Fifth Circuit’s decision goes against First Amendment precedent and warned that it could lead to harmful posts remaining on social media.

“There can be nothing more Orwellian than government claiming to protect speech by dictating what companies should say,” said Matt Schroers, president of the Computer and Communications Industry Association. “Texas law forces private enterprises to distribute dangerous content ranging from foreign propaganda to incitement to terrorism, and puts Americans at risk.”

NetChoice, another industry group that along with the CCIA has challenged Texas law and another in Florida, echoed those concerns about “bad and offensive content” remaining online.

“We remain convinced that when the US Supreme Court hears one of our cases, it will uphold First Amendment rights for websites, platforms and apps,” said Carl Szabo, NetChoice Vice President and General Counsel.

Constitutional law experts have also been highly critical of Oldham’s view. Eric Goldman, a professor of law at Santa Clara University, said it was a “horrific opinion” full of factual errors.

“It’s a gross misunderstanding of the word ‘censorship,’ he said. ‘Censorship is something governments do.”

Earlier this year, the Eleventh Circuit Court of Appeals blocked key provisions of a social media law passed by Florida’s Republican-led legislature, saying it violated companies’ First Amendment rights. The state of Florida is widely expected to appeal this decision.

In the Fifth Circuit opinion, Oldham wrote that Texas and Florida laws differ in key respects because Florida law narrowly targets the speech of political figures and press companies while Texas law targets actions against anyone because of their political views. He wrote that he disagrees with the way the Eleventh Circuit has interpreted previous Supreme Court rulings regarding “editorial discretion,” or the right of media companies to determine the content they upload, and whether that applies to social networks.

“I don’t see how you can have both judgments without getting a decision from the Supreme Court,” Kosev said.

Meanwhile, conservative regulators took a winning run. Republican Federal Communications Commissioner Brendan Carr, who has emerged as a major critic of major social media companies, called resolution “Grand Court wins in bid to end Big Tech’s undisciplined censorship.”

Texas Attorney General Ken Paxton (right) called the court’s decision a “huge victory” for free speech on Twitter.

There are tough questions that courts have to deal with, said Jamil Jafar, director of the Knight Institute for the First Amendment at Columbia University.

“It is not clear exactly how the Analog Age First Amendment Act applies, or should apply, to communication platforms in the digital age,” he said. “Unfortunately, this view does not clearly present these questions, let alone answer them.”

Naomi Nix and Will Orimus contributed to this report.

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