5th Circuit ruling on content moderation

[I]nternet companies no longer have 1st Amendment rights regarding their editorial decision making.

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[L]ast summer, in a fit of censorial rage, the Texas legislature passed HB 20, a dangerously unconstitutional bill that would bar social media websites from moderating as they see fit. As we noted, the bill opens up large websites to a lawsuit over basically every content moderation decision they make (and that’s just one of the problems). Pretty quickly, a district court judge tossed out the entire law as unconstitutional in a careful, thorough ruling that explained why every bit of the law violated websites’ own 1st Amendment rights to put in place their own editorial policies.

On appeal to the 5th Circuit, the court did something bizarre: without giving any reason or explanation at all, it reinstated the law and promised a ruling at some future date.

  Tech Dirt

The point is, of course, that the GOP and Trump world want Trump and his ilk to be able to post whatever they want on privately owned websites such as Twitter and Facebook.

Parallel to all of this, Florida had passed a similar law, and again a district court had found it obviously unconstitutional. That, too, was appealed, yet in the 11th Circuit the court rightly agreed with the lower court that the law was (mostly) unconstitutional. That teed things up for Florida to ask the Supreme Court to review the issue.

And now, the 5th Circuit has handed down its ruling in the Texas case: HB 20 stands.

It is difficult to state how completely disconnected from reality this ruling is, and how dangerously incoherent it is. It effectively says that companies no longer have a 1st Amendment right to their own editorial policies. Under this ruling, any state in the 5th Circuit could, in theory, mandate that news organizations must cover certain politicians or certain other content. It could, in theory, allow a state to mandate that any news organization must publish opinion pieces by politicians. It completely flies in the face of the 1st Amendment’s association rights and the right to editorial discretion.

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Considering just how long Republicans (and Oldham was a Republican political operative before being appointed to the bench) have spent insisting that corporations have 1st Amendment rights, this is a major turnaround.

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[I]t’s as if Judge Oldham has never heard of the 1st Amendment’s prohibition on compelled speech.

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Judge Oldham insists that concerns about forcing websites to post speech from Nazis, terrorist propaganda, and Holocaust denial are purely hypothetical.

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Oldham continually focuses (incorrectly and incoherently) on the idea that editorial discretion is censorship. There’s a reason that we’ve spent the last few years explaining how the two are wholly different — and part of it was to avoid people like Oldham getting confused. Apparently it didn’t work.

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It basically argues that the state can now compel any speech it wants on private property, as it reinterprets the 1st Amendment to mean that the only thing it limits is the power of the state to remove speech, while leaving open the power of the state to foist speech upon private entities.

Remember when the right continually railed against "activist judges"?

Continue reading.

...but hey, do what you want...you will anyway.

UPDATE: From a First Amendment attorney: