This week, a divided three-judge panel for the 5th Circuit Court of Appeals lifted an injunction on a 2021 Texas law that would threaten to allow disinformation to flourish.
This almost certainly indicates that the Court of Appeals is prepared to uphold the law, despite all of its constitutional defects. Some Republicans have claimed that social media companies have an anti-conservative bias, and Texas’ law is a legislative response to that sentiment. Essentially, it bars large social media companies from deplatforming users based on the content of their speech.
A post-argument stay I think telegraphs the result of the appeal almost 100%, so expect an opinion upholding the law at some point.
— Raffi Melkonian (@RMFifthCircuit) May 11, 2022
But there’s a reason social media companies must be able to toss users off their platforms, especially those who peddle disinformation and hate speech, for example. Deplatforming isn’t censorship; quite the opposite. It is the way we protect speech and our democracy.
The First Amendment protects our ability to speak and, therefore, to be heard. The hallmark of the free speech clause is freedom from censorship by the government. Many people forget the last part of that sentence and wrongly think the First Amendment acts as a guard against private censorship; it does not, and should not. The idea behind guarding against government censorship is that a free and robust exchange of ideas allows the truth to rise to the top. A vigorous exchange of ideas includes the ability of a private individual or group to tell someone to be quiet. This means social media companies can toss liars off of their platforms. The truth may be drowned out if social media companies, as private companies, don’t do their part to eliminate false information.
The idea behind guarding against government censorship is that a free and robust exchange of ideas allows the truth to rise to the top.
A trial court judge who reviewed a challenge to Texas’ law in 2021 correctly concluded that Texas’ prohibitions on “how social media platforms disseminate content violate the First Amendment.” Social media companies must be able to exercise editorial discretion, and Texas’ law prevents them from doing so. The trial court judge found a number of First Amendment defects with Texas’ law, including problems with the law’s disclosure requirements and the fact that the law is unconstitutionally vague, which is what led to that court issuing an injunction, stopping Texas’ law from going into effect at the time. Until this week.
All of this comes on the heels of Elon Musk’s announcement that if and when his acquisition of Twitter is complete, he would reinstate former President Donald Trump’s account. Trump was, finally, tossed off the social media platform not for some policy disagreement with his posts. Twitter did not ban Trump because the company simply has a different view on tax policy and doesn’t want users to hear that differing perspective. Trump was kicked off Twitter because the company determined his tweets shortly after Jan. 6, 2021, were likely to inspire similar violence. Up to that point, Twitter had in fact allowed him to stay on for years, while he peddled numerous lies about the election and the pandemic. Lies about something like the election, even when other people on social media are fact-checking those lies, have still proven to be deeply harmful. Disinformation, particularly about the election, spreads like wildfire through our information ecosystem. People read it, share it and therefore amplify false speech, often before it can be corrected. The more people read about the lie that the 2020 presidential election was stolen, the more some people will believe it. And if they believe it, it is not difficult to imagine that they will support legislation that is allegedly aimed at cracking down on voter fraud, never mind the fact that widespread voter fraud is a myth. Suddenly we have a very real, concrete and detrimental consequence of allowing disinformation to flourish. Lies about something like the election, even when other people on social media are fact-checking those lies, have still proven to be deeply harmful. Promoting free speech doesn’t mean allowing every person or group with a lie to keep yelling it as frequently and loudly as they can. It means ensuring that the government allows people to speak, and, yes, lie. It also means that other private individuals must be allowed to tell the liars to sit down and shut up. In our modern age, that means letting social media corporations deplatform certain people for the content of their speech. Preventing social media companies from being able to implement their own policies about expression on their platforms would actually harm their First Amendment rights. It would also hamper a true exchange of ideas. The truth can only rise to the top if we are allowed to force lies to the bottom.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
