Important ruling: Fifth Circuit Rejects First Amendment Challenge to Texas Social Media Common Carrier Law
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.” Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina (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. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.
Via Instapundit – “This is big”.
Huge!
Combine that with the lawsuits over Facebook and such censoring individuals at the direction of the US Government. It will take a while, but maybe free speech is not dead.
How will Texas enforce a law where the corporation is not physically in Texas, as it usually won’t be?
Further, it’ll be tough for a platform to exclude everything libellous and illegal, but never anything else. The moderators will have to know exactly where the dividing line is or they’ll be in violation of some law, an impossible task.
Pretty good guess this is headed to the Supreme Court.
California seems able to enforce car manufacturers worldwide to obey their laws, I say it’s time Texas gives it a whirl.
California has a special section of the Clean Air Act allowing it to do so, which should be removed on commerce clause, equal protection and delegation doctrine grounds, but I’m sure activist “living constitution courts” haven’t ruled against it
The only reason California have any power over the car companies is because of the size of the market. If Wyoming had an agency like CARB (California Air Resources Board) they would have no influence over the car manufacturers because the market is too small. Back in the 70’s car manufacturers used to have California only cars to meet the demands of CARB due to the huge market. With the advent of computer controlled fuel injection, it is cheaper for the manufactures to have just one spec.
They do not necessarily know if the originator or consumer is in Texas so this applies to all Facebook content.
KM, as usual, tries to confuse and obfuscate with irrelevancies.
How did the EU enforce EU law on Microsoft, when its HQ’d in California?
Same thing that Texas can do; determine if the law was broken, and give out a whopping great fine, perhaps even prison terms for repeat offenses.
As far as “libellous and illegal” speech, FB and the Twit both allow that, as long as its properly directed, ideologically speaking, and that’s OK, because section 230, but its not OK to do this with an ideological bias, because, again, section 230.
Publisher or platform, can’t be both in they eyes of the law, but then again, I’m pretty sure that KMs idea of what is or is not legal aligns 100% with the FBIs.
I see we’re going to have to litigate Stratton Oakmont vs. Prodigy all over again because soi-disant conservatives are just fine with a government forcing a corporation to give people free stuff at the point of a gun, as long as they’re receiving the free stuff.
The fibre optic lines that carry data are common carriers. A web site running on a privately owned server isn’t, and if you don’t understand the difference you deserve everything that’s about to happen.
Section 230 classes that “private server” company as a common carrier so as to prevent them being sued for the information they carry. It also grants them censorship powers for things considered violent, obscene or “otherwise objectionable” (which covers just about anything…)
From the wiki:
In essence, the arguments both for and against Net Censors is basically an argument between those two parts of Section 230.
Folks are just not happy with them being treated as a common carrier AND given censorship powers. They want it to be one or the other. Treat the web site operator like a telco (your phone calls are not censored) or treat it like a TV Station (they “protect” you from porn…). But web sites are different…
No section 230 protection for them, as they aren’t “common carriers.”
People who come to SDA are getting “free stuff” from a web site on a privately owned server.
People who go to Twitter, FB and Instagram are the ones providing the “free stuff” — to the social media companies who collect and monetize their data. That’s a different relationship altogether.
Technically speaking cotton plantations were private companies on private property conducting private business.. We know how that ended.. Its is the governments job or better yet the laws job to step in from time to time and remind the private owners that ownership has limitations where people are concerned..
Yes. They wanted common carrier status as protection from libel suits. But that means they have very limited editorial power. One or the other. Complaints about private property are unpersuasive when the companies actively assist partisan causes at election time and work with the government to suppress points of view the government asks them to suppress.