Court of Appeals Speaks: ENOUGH
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2022-09-18 07:00 by Karl Denninger
in Editorial , 605 references Ignore this thread
Court of Appeals Speaks: ENOUGH
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This is a rather interesting opinion; take the time to read it before poo-pooing what it says, because this case is likely not over.

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.

The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

The analysis is quite-compelling and enumerated.

There is plenty of case law on this specific point when it comes to corporate actions with reasonably bright-line tests as to where the First Amendment attaches on the premise that the right to Free Speech as embodied in the First Amendment cannot be abused to compel speech.

But intertwined with this is, as I've pointed out repeatedly, common-carrier doctrine which is also well-established and, in point of fact, pre-dates the Constitution entirely.  Said doctrine does not automatically attach to every person who holds out service to the public; there is a weighing interest involved in that in a truly competitive market, as measured at a given time and place, it tends not to attach where the more-restrictive that becomes and especially when it becomes an effective monopoly on services or goods held out to the public said attachment, as imposed by a state, is both reasonable and supported in law.

To that latter point these firms have held themselves out as "the public square" with such arguments that they're free and always will be (e.g. Facebook) and similar, and have developed such reach and penetration that for many activities which absolutely reach heightened scrutiny (e.g. political opinion, candidacy for public office and similar) thus heightened scrutiny properly attaches to their restrictive acts.

The platforms argue that as in Miami they're publishers with constraints on resource and thus can do what they will as private firms.  But Miami, along with PG&E, held this for specific reasons not the least of which was that by forcing the publication of opposition speech they of necessity displaced other speech by the firm due to the limits and costs of time and space.  This was properly found to not apply in the case of these social media companies because there is no such limit on time and space nor any crowding factor, never mind that said firms take refuge in Section 230 to declare that they are NOT publishers whenever it suits them, and in fact cite Section 230 as the reason they can operate their business model in the first place.

In addition there is quite a distinction between ex-ante and ex-post-facto censorship.  One is a right of review ("editorial") while the other is a punitive measure imposed on someone after the fact.  Section 230 does not distinguish and in fact goes out of its way to make sure that cannot be used as a means of challenging said protection but when it comes to a claim of "editorial discretion" there is a monstrous difference between such a right of review and one of punishment.  The court properly found that distinction.

In addition the court found the proper distinction between the Texas statute at issue and one passed in Florida and ruled unconstitutional in that the latter created a protected class (politicians) which is inherently discriminatory and in no small part was struck on that basis.  The Texas statute, on the other hand, prohibits viewpoint-based ex-post-facto discrimination against anyone by a firm of sufficient size and market power which has, by dint of the State Legislature, acquired common-carrier requirements due to said size, penetration and lack of meaningful competitive opportunities as measured by the real world and not some hypothetical set of claims.

It will be interesting to see if Twitter .et.al. attempt to appeal this further up the chain and whether this spawns similar legislation in other states that claim to be "conservative" and thus respect the rights of the people.