The ruling could have far-reaching effects on the future of tech regulation, giving new ammunition to conservative politicians who have alleged big tech companies are silencing their political discourse.
But the ruling departs from previous and recent rulings by the 11th Circuit Court of Appeals and lower courts and tech industry groups have said they are likely to appeal.
Friday’s opinion was written by Judge Andrew Stephen Oldham, who was appointed to the 5th Circuit by former President Trump. He was joined by Judge Edith Jones, a Reagan appointee. Judge Leslie H. Southwick, a George W. Bush appointee, agreed in part and dissented in part.
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 “muzzle speech.”
“Today, we reject the notion that corporations have a free First Amendment right to censor what people say,” the decision reads.
The decision criticized arguments made by tech industry groups to challenge the law, arguing according to corporate logic, “email providers, mobile phone companies and banks could cancel the accounts of anyone who sends an e-mail. e-mail, make a phone call or spend money in support of an underprivileged political party, candidate or business”.
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An appeal of the ruling could force the Supreme Court, where conservatives have a majority, to weigh in on internet regulation, which has become an increasingly politicized issue since the 2016 election. Democrats have called for new limits for companies that would block the proliferation of harmful content and misinformation on platforms, while Tories have argued that companies have gone too far in monitoring their sites, especially after the companies’ decision in 2021 to ban Trump following the January 6 attacks on the Capitol.
In an analysis shared with The Washington Post in July, the industry group Computer & Communications Industry Association, one of the groups that challenged the Texas law, identified more than 100 bills in state legislatures aimed at regulating social media content moderation policies. Many state legislatures have adjourned for the year, so tech lobbyists are bracing for more activity in 2023.
Earlier this week, California Governor Gavin Newsom (D) signed a bill that requires major social networks to make public their policies on handling posts, responding to criticism that posts glorifying violence and hate are amplified by the platforms.
“If the Supreme Court does not intervene, it will be increasingly difficult to operate a social media company nationally, as it could navigate state rules that differ or even conflict,” said Jeff Kosseff, professor of cybersecurity law in the United States. Naval Academy.
Earlier this year, the Supreme Court blocked the Texas law from taking effect in a 5-4 decision, responding to an urgent request from tech industry trade groups. However, the judges did not explain the reasoning for their decision, which is common in such applications.
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In their ruling, the 5th Circuit judges agreed with Texas that social media companies are “common carriers,” like telephone companies, that are subject to government regulations because they provide essential services. Conservatives have long made this argument, which 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 5th Circuit’s ruling flies in the face of First Amendment precedent and warned it could lead to the persistence of harmful social media posts.
“Few things could be more Orwellian than government claiming to protect speech by dictating what companies must say,” said Matt Schruers, president of the Computer & Communications Industry Association. “Texas law compels private companies to broadcast dangerous content ranging from foreign propaganda to incitement to terrorism, and puts Americans at risk.”
Earlier this year, the 11th Circuit Court of Appeals blocked key provisions of a social media law that was passed by Florida’s Republican-led Legislature, saying they violated First Amendment rights. companies. The state of Florida is expected to appeal the decision.
In the 5th Circuit opinion, Oldham wrote that the laws of Texas and Florida differ on key points, as Florida law narrowly targets the speech of political figures and journalistic enterprises, while Texas law targets actions against anyone above their political views. The justices also wrote that they disagreed with the court’s interpretation of previous Supreme Court rulings regarding “editorial discretion,” or the right of media companies to decide what content they broadcast and if it applies to social networks.
“I don’t see how you could have those two decisions there without having a Supreme Court resolution,” Kosseff said.
Meanwhile, conservative regulators have taken a victory lap. Republican Federal Communications Commissioner Brendan Carr, who has become a major critic of big social media companies, called the decision a “major legal victory in the effort to end Big Tech’s runaway censorship.”
And Texas Attorney General Ken Paxton (right) called the court’s decision a “MASSIVE VICTORY” for free speech on Twitter.
BREAKING: I just got a MASSIVE VICTORY for the Constitution and free speech in federal court: #BigTech CANNOT censor the political voices of ANY Texan! The 5th Circuit “reject[s] the idea that corporations have a free First Amendment right to censor what people say. pic.twitter.com/UijlzYcv7r
— Attorney General Ken Paxton (@KenPaxtonTX) September 16, 2022
Naomi Nix and Will Oremus contributed reporting.