The Fifth Circuit blew it on editorial freedom

In September of last year, Texas passed a law declaring that large social media platforms are “common carriers” subject to onerous regulations over who and what they can host. The law prohibits platforms from removing, demonetizing, or blocking a user or a piece of content based on the viewpoint expressed. Platforms found to violate this requirement face liability for each piece of content they remove.

NetChoice, a trade association of online businesses, sued to block the law on First Amendment grounds, among other claims. A federal district court in Texas ruled in favor of NetChoice and preliminarily enjoined the law. Texas appealed to the Fifth Circuit, where Cato filed an amicus brief supporting NetChoice. After the Fifth Circuit let the law go into effect without a written opinion, NetChoice filed an emergency petition to the Supreme Court (which Cato again supported), and the high Court put the stay back in place by a 5-4 vote.

Last Friday, however, the Fifth Circuit finally issued a written opinion on the merits and lifted the stay once again, holding (by a 2-1 vote on the key issue of the speech-hosting requirements) that the law complies with the First Amendment.

The Fifth Circuit’s opinion is notable and startling for its complete rejection of a First Amendment right to editorial freedom, a right that the Eleventh Circuit recently affirmed in a decision blocking a similar Florida social media law. Indeed, on this crucial issue, the Fifth Circuit got exactly wrong what the Eleventh Circuit got right, and the implications could ripple far beyond just social media.