NetChoice v. Paxton

In NetChoice v. Paxton, the Fifth Circuit ruled against continued liberal censorship by Big Tech.

Judge Andrew Oldham wrote the decision for the 2-1 panel of the court, decided on September 16, 2022. The entire opinions run 113 pages, of which Judge Edith Jones' concurrence is 2 pages and Judge Leslie Southwick's dissent is 20 pages.

The panel majority cited about 130 precedents, while the dissent cited about 20.

The panel majority shredded a contrary decision by the Eleventh Circuit in NetChoice v. AG, Fla. (May 23, 2022), as the Fifth Circuit thoroughly debunked the reasoning by the Eleventh Circuit with 11 pages of analysis at Slip Op. pp. 79-89.

Panel Majority's Reasoning

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Under these precedents, a speech host must make one of two showings to mount a First Amendment challenge. It must show that the challenged law either (a) compels the host to speak or (b) restricts the host’s own speech. The Platforms cannot make either showing. And (c) the Platforms’ counterarguments are unpersuasive.

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The Platforms are nothing like the newspaper in Miami Herald. Unlike newspapers, the Platforms exercise virtually no editorial control or judgment. The Platforms use algorithms to screen out certain obscene and spam-related content. And then virtually everything else is just posted to the Platform with zero editorial control or judgment. “Something well north of 99% of th[is] content . . . never gets reviewed further. The content on a site is, to that extent, invisible to the [Platform].” NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1092 (N.D. Fla. 2021). Thus the Platforms, unlike newspapers, are primarily “conduit[s] for news, comment, and advertising.” Miami Herald, 418 U.S. at 258. And that’s why the Supreme Court has described them as “the modern public square.” Packingham, 137 S. Ct. at 1737; see also Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 1224 (2021) (Thomas, J., concurring) (noting Platforms are also “unlike newspapers” in that they “hold themselves out as organizations that focus on distributing the speech of the broader public”). The Platforms’ own representations confirm this. They’ve told their users: “We try to explicitly view ourselves as not editors. ... We don’t want to have editorial judgment over the content that’s in your feed.” They’ve told the public that they “may not monitor,” “do not endorse,” and “cannot take responsibility for” the content on their Platforms. They’ve told Congress that their “goal is to offer a platform for all ideas.” And they’ve told courts—over and over again—that they simply “serv[e] as conduits for other parties’ speech.”

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Judge Jones' Concurrence

Judge Edith Jones wrote a separate concurrence that included the following:

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I concur in Judge Oldham’s conclusion and reasoning that the business of the regulated large social media platforms is hosting the speech of others. Functioning as conduits for both makers and recipients of speech, the platforms’ businesses are closer analytically to the holdings of the Supreme Court in PruneYard and FAIR than to Miami Herald, Pacific Gas & Electric, and Hurley. It follows from the first two cases that in arbitrarily excluding from their platforms the makers of speech and preventing disfavored speech from reaching potential audiences (“censoring,” in the comprehensive statutory term), they are not themselves “speaking” for First Amendment purposes. In particular, it is ludicrous to assert, as NetChoice does, that in forbidding the covered platforms from exercising viewpoint-based “censorship,” the platforms’ “own speech” is curtailed. But for their advertising such “censorship”—or for the censored parties’ voicing their suspicions about such actions—no one would know about the goals of their algorithmic magic. It is hard to construe as “speech” what the speaker never says, or when it acts so vaguely as to be incomprehensible. Further, the platforms bestride a nearly unlimited digital world in which they have more than enough opportunity to express their views in many ways other than “censorship.” The Texas statute regulates none of their verbal “speech.” What the statute does, as Judge Oldham carefully explains, is ensure that a multiplicity of voices will contend for audience attention on these platforms. That is a pro-speech, not anti-free speech result. Another way to look at this case, however, is through the Turner I decision, in which the Supreme Court held that cable TV companies are to some extent engaged in First Amendment-covered “speech” when, as they “operate” their systems, they determine which cable channels to host. Using intermediate scrutiny, the Court did not reject federal must-carry regulations requiring hosting of certain preferred channels. Instead, the Court distinguished both Pacific Gas & Electric and Miami Herald for three reasons. First, the must- carry regulations were content neutral. Second, they did not force cable operators to modify their own speech, nor were viewers likely to associate the mandatory hosted speech with that of the operators. And third, a cable operator’s selection of channels controlled the flow of information into subscribers’ households, and could “thus silence the voice of competing speakers with the mere flick of a switch.” Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. at 656, 114 S. Ct. at 2466. I find all of these points compellingly applicable to analyzing the regulations imposed on large social media platforms by the Texas statute before us. Finally, even if there is a legitimate basis to argue that the Texas statute may chill the platforms’ “speech,” it is not sufficient to sustain a facial attack, as Judge Oldham explains. Case by case adjudication is a small burden on the Goliaths of internet communications if they contend with Davids who use their platforms.

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