Last month, in a case called NetChoice v. Paxton, the U.S. Court of Appeals for the Fifth Circuit, writing through Judge Andy Oldham, upheld Texas’s anti-censorship bill, H.B. 20. The law, designed to stop social medial companies from censoring users based on their personal opinions, required that platforms “may not censor . . . a user’s expression . . . based on the viewpoint of the user.”

The opinion highlights how important social media is to our public discourse today. Social media platforms are “the forum for political discussion and debate,” Judge Oldham wrote, “and exclusion from the Platforms amounts to exclusion from the public discourse.” The opinion also demonstrates how challenging it can be to apply old First Amendment caselaw to this new online forum.

The issue in the case was whether social media platforms can be treated like “common carriers” (like mail carriers, telephone companies, and railroads) and prohibited from discriminating against their users.

The plaintiffs in the case—several social media platforms—claimed that they were not common carriers and had the right to discriminate against disfavored (read: conservative) speech because censorship is itself a form of protected expression.

In his ninety-page opinion, Oldham rejected their arguments, framing them as “an attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee. The Platforms are not newspapers. Their censorship is not speech.”

Oldham’s conclusion has merit even though the legal questions are hard. They’re hard in large part because the relevant caselaw evolved long before anyone even conceived of social media platforms or foresaw how they would become the essential public fora for political discourse.

The plaintiffs relied primarily on two old cases—Pacific Gas & Electric Co. v. Public Utilities Commission (1986) and Miami Herald v. Tornillo (1974)—to support their claimed First Amendment right to censor. In the first, the Supreme Court held that a state could not force a company to put a hostile newsletter in its billing envelopes. And in the second, the Court held that a state could not force a newspaper to publish politicians’ replies to its editorials.

In the abstract, these cases stand for the proposition that a private entity has a free speech right against a government forcing it to host viewpoints with which it disagrees. And this proposition is reasonable under the facts of those cases.

But Oldham made a compelling argument that those cases are not good analogies for social media platforms. What works in the world of newspapers, flyers, and parades down Main Street might not be so easily transplanted onto social media.

Social media platforms, Oldham wrote, are less like traditional newspapers than they are like phone companies, telegraphs, railroads, and other common carriers. Just like a person having a telephone call, the carriers are not ‘speaking’ simply by carrying their users’ messages. Rather, at least in their role as information hosts, they are a “passive receptacle or conduit,” and the common law going back centuries has recognized that the government can forbid those companies from discriminating.  

Oldham also noted that Congress has also endorsed the view that social media companies are not like newspapers by enacting Section 230 of the Communications Decency Act. Section 230 immunizes “interactive computer services,” like social media platforms, from civil liability for what their users write on them. Emphasizing the internet’s capacity to “offer a forum for a true diversity of political discourse,” Congress thought it would be burdensome and unfair to treat young internet platforms like traditional publishers.

This makes sense because when a reasonable person sees an incendiary message on Twitter, they do not immediately assume that Twitter endorses the poster’s viewpoint. On the other hand, someone might reasonably assume that a vile, racist column in the newspaper is sanctioned by the paper’s editors, because editors traditionally exercise selective control over their pages.

These are the differences that the Fifth Circuit highlights to conclude that the law need not treat the op-ed pages of the Miami Herald and the billing envelopes of Pacific Gas & Electric the same as a social media platform.

Not everyone can get a major newspaper to publish their opinions, but anyone can send a letter to anyone else or stand on a soapbox in a public square. Social media companies, Oldham reasoned, are much more like the latter than the former.

At first blush, Oldham’s opinion might seem to conflict with a case from the Eleventh Circuit striking down a similar Florida law. But as Oldham explains, that case was different in two important ways. First, Florida’s law barred platforms from affirmatively speaking by, for example, attaching misinformation warnings to users’ posts. That is, indeed, a violation of the First Amendment—but that’s not what Texas’ law does. It bans only censorship.

Professor Eugene Volokh has explained that social media companies do multiple things (hosting other people’s speech, curating that speech, and speaking on their own behalf), and he argues that laws should draw lines between them. When social media companies simply host other people’s speech, Oldham’s view that they are acting as common carriers seems to fit well. But when they are speaking for themselves, that, of course, is protected speech. 

Oldham was careful to draw that same line.

Second, as Oldham pointed out, the Eleventh Circuit reasoned that social media companies cannot be common carriers if they did not start out as common carries. But he made a compelling argument that the Eleventh Circuit is wrong as a matter of historical fact: Many industries began by discriminating against customers, then were made common carriers to fix that exact problem. If that was appropriate for traditional public squares, why not for the modern public square?

This will not be the end of this issue, and other judges and legal commentators will disagree with Judge Oldham. But it seems to us that Oldham’s position has merit. At the very least, we can say that Big Tech’s reliance on Miami Herald and Pacific Gas & Electric is not as compelling as they seem to think.

The life of the law, after all, is experience, not the rote application of old rules to contexts far-flung from the original facts.

 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].