The conservative 5th U.S. Circuit Court of Appeals last week upheld a Texas law that prohibits large social media companies from deplatforming their users based on the content of what those users post. This ruling makes a good deal of sense — if you want federal appeals court judges to act like outcome-driven partisan hacks. If, on the other hand, you believe in the rule of law, our democracy and limiting disinformation, the ruling is outrageous.
This ruling makes sense if you want federal appeals court judges to act like outcome-driven partisan hacks.
The First Amendment protects us from the government, and only the government, from limiting our speech rights. The First Amendment does not bar private speakers (such as social media companies) from telling other speakers (such as their users) to be quiet or to get off their virtual lawns.
A new Texas law, crafted by Republican lawmakers and signed by the state’s Republican governor, bars social media companies from regulating content on their platforms based on “viewpoint.” While on its face the law would apply equally to those with either liberal or conservative perspectives, Texas Gov. Greg Abbott was explicit that this law was aimed at protecting “conservative ideas and values.” If you think that sounds so vague that you don’t know exactly what social media companies can and cannot do, then you’re on the right track. In fact, the trial court judge who reviewed this law and correctly struck it down concluded that it was unconstitutionally vague.
Vagueness can be deadly to a law because if people don’t know what they can or cannot do, they might fail to speak (or fail to kick someone off their platform). A social media company wishing to enforce its user agreement and deplatform someone trafficking in lies and conspiracy theories might opt not to act for fear that the user also espoused conservative political views.
Some conservatives are apparently concerned that allowing social media companies to exercise their First Amendment rights and manage the content on their own platforms is abusive. They point to Twitter’s deplatforming of then-President Donald Trump in the wake of his apparent attempt to use Twitter to stage a self-coup. Twitter famously kicked Trump off of its platform based on a rational belief that his posts put public safety at risk and could incite violence. If this is the type of content moderation they fear, I’ll politely suggest they should perhaps be more worried about allowing lies, disinformation and conspiracy theories to propagate without limits.
Far from promoting First Amendment rights, the 5th Circuit’s ruling seems to end them for large social media companies. It is utterly incomprehensible for any jurist to conclude that the First Amendment prohibits a private company from engaging in content moderation. Let’s use an example to drive the point home: Imagine the State of Hypothetical wanted newspapers operating in the state to run more guest essays by business leaders and that its lawmakers passed a law to that extent. If the newspapers, again private actors, lack First Amendment rights, then in theory, such a law would be permissible.
If social media platforms can be made to allow for the expression of viewpoints they find reprehensible, then that means they lack full First Amendment rights.
The “marketplace of ideas” is one of the primary rationales supporting the freedom of expression protected in the First Amendment. The basic idea is that the truth will emerge when ideas can freely compete in a metaphorical marketplace. This depends on freedom from government censorship. It also depends on a private person’s or group’s ability to freely say, “You’re wrong, and here’s why. Sit down and shut up.” Texas is preventing social media companies from doing that, therefore undermining that market.
The marketplace of ideas only flourishes if the government doesn’t intrude to protect the speech it likes and silence the speech it doesn’t. Yet, that is exactly what Texas’ law does. Texas has stomped on the freedom of one market participant, social media companies, to say and do what it wishes. And Texas has been explicit about its motives. This is a quintessential example of the government implementing a law to protect the speech it likes. This is a quintessential example of the government implementing a law to protect the speech it likes. If Texas’ law is allowed to stand, it will not only take a sledgehammer to our First Amendment protections, but also usher in an era in which social media is even more of a breeding ground for conspiracy theories. Do you believe that Covid-19 is a hoax, that President Joe Biden stole the 2020 election, that a research facility in Alaska is actually a place for experimental weapons that can control your mind, or that you just saw Bigfoot at the market? Well, step right up to the circus that is now America. Share your false views without any fear that someone will point out their falsity. Legally speaking, it shouldn’t matter if the justices on the Supreme Court lean conservative or liberal when it comes to a challenge to Texas’ law. It should only matter if they lean in favor of faithfully upholding the Constitution. Any judge who honestly looks at the First Amendment and what it protects will trash Texas’ law. Simply put, if your viewpoint is that a free and fair election was stolen, a private social media company should, legally and practically, be allowed to kick you off of its platform. Far from harming the freedom of speech, we protect speech by allowing private companies to decide who can and cannot use their platforms. To do otherwise would be compelling the companies to speak, and compelled speech can never be free.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
