September 27, 2022

Dueling Rulings on Big Tech Speech Suppression Demand SCOTUS Attention

Two circuit courts split over how to deal with censorship on social media.

A three-judge panel of the Fifth Circuit Court of Appeals last week upheld a Texas law that forbids large social media companies from engaging in the censorship of users’ viewpoints on their platforms. In its decision, the court rejected the notion that somehow the First Amendment protects Big Tech rather than the little guy.

In a 90-page opinion, Judge Andrew Oldham reflected on how Big Tech has sought to turn First Amendment speech protections on their head. “A rather odd inversion of the First Amendment” has been claimed, he wrote, that “buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech. Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”

The court asserted that it was not, in fact, weighing in on the issue of determining what qualified as permissible speech; rather, it focused on the rightful role of the government to regulate business. The court noted, for example, that the government can impose nondiscrimination obligations on business.

Oldham noted as an example that back in the 19th century, Western Union was obligated under “common-carrier doctrine” to treat all customers the same, and when “the largest telegraph company sometimes refused to carry messages from journalists that competed with its ally, the Associated Press — or charged them exorbitant rates,” the government had the authority to step in and impose nondiscrimination obligations on Western Union.

The Fifth Circuit also noted several court rulings that set the precedent of the government having the role of preventing businesses from silencing customers’ speech.

Meanwhile in Florida, state Attorney General Ashley Moody petitioned the Supreme Court to take up the case against its anti-censorship law, which the Eleventh Circuit Court of Appeals struck down in May. Given the effective competing and contradictory appellate court rulings, it does seem likely and inevitable that the Supreme Court will take up the case.

As we have observed in the past, the crux of the issue rests on Section 230 of the Communications Decency Act. Big Tech has taken advantage of this rule, which was designed to protect social media platforms from being held liable for speech published on their platforms. Similar to a phone company not being held liable for speech that is spoken on its communication network, so too social media companies would not be held liable for the speech users post on their platforms.

Unfortunately, Big Tech companies like Facebook and Twitter decided to act like private publishing companies, and they have increasingly sought to regulate speech on their platforms according to their own viewpoint and opinions, often shrouded in the sanctimonious cloud of “independent third-party fact-checking.” This is what SCOTUS needs to weigh in on, and we certainly hope that, like the Fifth Circuit, the justices rule that such Big Tech speech suppression is illegal.

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