Last week, the Fifth Circuit Court of Appeals in New Orleans issued a ruling on Texas’ Big Tech censorship law that has been the constant subject of media headlines since it was signed into law by Gov. Abbott in 2021. This ruling, the most recent in a long legal saga , upholds the law, signaling a victory for free speech proponents in Texas and throughout the country.
The Texas law challenges the blatant censorship by Big Tech when it comes to political speech. Specifically, the law established complaint procedures and disclosure requirements related to social media censorship. This law applies to social media platforms with more than 50 million active users. Furthermore, this law effectively classifies social media platforms as common carriers, contending that these platforms are more like public utilities than private publishers with editorial capacity.
Immediately after the passage of this law, NetChoice, a trade group representing Meta and other Big Tech companies, sued Texas on the grounds that the law was unconstitutional. Lobbyists and lawyers for NetChoice have argued that companies such as Meta and Twitter maintain First Amendment rights to free speech and that their censorship of others is simply an expression of their First Amendment right. They contend that keeping posts or content that they do not agree with on their platforms is akin to compelled speech, which violates the First Amendment.
This argument of compelled speech and the constitutionality of similar legislation has been held and heard in state capitols across the country since January 2021. In the past 21 months, 82 bills have been proposed in 34 states, all attempting to challenge the unilateral control Big Tech has on online speech in some way, shape, or form. With each piece of legislation, proponents of free speech, like The Heartland Institute, have faced off against NetChoice in hearings across various state capitols.
As one of the government relations managers for The Heartland Institute, I have appeared in many of these hearings. While we played a game of cat-and-mouse around the country with NetChoice, each viewpoint and organization experienced victories and losses. Despite the outcomes of individual hearings, the fulcrum of the oral arguments remained the same: Did Big Tech maintain a First Amendment Right to censor Americans?
When this Texas law first surfaced in U.S. District Court in December 2021, Judge Robert Pitman blocked the law, agreeing with the First Amendment arguments of Netchoice. However, Texas Attorney General Ken Paxton appealed to the Fifth Circuit Court of Appeals, where judges lifted the initial injunction in May 2022, after they ruled Big Tech has overstepped its legal bounds as platform for free speech. Although that decision was appealed by NetChoice to the Supreme Court, which suspended the law pending a full review of the Fifth Circuit, which leads us to this latest development.
Most specifically, the judges in the Fifth Circuit said, “We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee.” Make no mistake, this clearly signals a significant win for online free speech in the Lone Star State as well as all individuals and organizations that have been proponents of this and legislation of this kind since the onset of this debate.
In addition to testifying across the nation, The Heartland Institute submitted an amicus brief at the beginning of this legal proceeding, which was cited multiple times in the 150-page decision written by Judge Andrew Oldham.
Heartland’s amicus brief highlights the hypocrisy of social media platforms and their claim that they are simply bulletin boards or conduits for user speech and that they maintain no editorial component. This claim insulates these entities from liability under Section 230 of the 1996 Communications Decency Act. In reality, it is evident that because they clearly engage in censorship, these platforms do clearly operate in an editorial capacity.
The decision states that “The Platform’s position, in this case, is a market shift from their past claims that they are simple conduits for user speech and that whatever might look like editorial control is in fact the blind operation of “neutral tools.” It is obvious that Judge Oldham and the Fifth Circuit agree with The Heartland Institute’s assertion of Big Tech’s doublespeak.
Ultimately, this ruling is a substantial victory for political speech regardless of partisan affiliation. Any steps we can take to distance ourselves from Orwellian censorship are steps towards a better future. This ruling is paramount in Texas, but also highly relevant for the other 49 states. As lawmakers from coast to coast gear up for the next legislative session, they should be encouraged to sponsor and advocate for legislation like this in their states. After all, the merits of this case and this ruling show us once and for all that Big Tech censorship is indeed unconstitutional.
Samantha Fillmore( firstname.lastname@example.org )is a government relations manager at The Heartland Institute.