The Fifth Circuit’s recent decision in NetChoice, L.L.C. v. Paxton, has set up a possible Supreme Court clash between social media behemoths and States passing “anti-online censorship” laws. In August 2021, the Texas legislature passed H.B. 20, prohibiting large social media platforms from “censoring” content on the basis of viewpoint or geographic location within the State. Netchoice, a trade association representing large social media platforms including Meta and TikTok, filed suit against Texas in September 2021 before H.B. 20 took effect. The district court issued a preliminary injunction on the grounds that H.B. 20 violated social media platforms’ first amendment protected editorial discretion. The Fifth Circuit granted a stay of the preliminary injunction, but this stay was overturned by the Supreme Court in May 2022.
On appeal, NetChoice argued H.B. 20’s prohibition on viewpoint-based censorship was facially unconstitutional. The Fifth Circuit rejected these arguments. The crux of the Fifth Circuit’s decision was its classification of the Platforms as “common carriers.” The Platforms argued they are similar to newspapers; their content curation is First Amendment-protected speech in the form of editorial discretion. Thus, limiting Platforms editorial discretion and forcing them to carry certain speech violated their First Amendment rights by compelling them to speak. The Fifth Circuit disagreed. The Court pointed to the Platforms’ practices, representations to their users, and the language of Section 230 of the Communications Decency Act to assert they do not exercise “editorial judgment” over hosted content and should not be considered “publishers” in the way newspapers are. Instead, the Fifth Circuit classified Social media platforms as “common carriers,” which have always been subject to statutory nondiscrimination requirements. Accordingly, the Fifth Circuit applied intermediate scrutiny and upheld H.B. 20.
This decision places the 5th Circuit in direct conflict with the 11th Circuit. In May 2021, Florida enacted legislation similar to the Texas’ H.B. 20. The Florida law prohibits the largest “social media platforms” from taking certain moderation actions like “deplatforming” or “shadow banning”political candidates, and censoring “journalistic enterprises” based on their content.
NetChoice, once again, sued on behalf of the platforms to challenge the Florida law. But unlike the 5th Circuit, the 11th Circuit in NetChoice, L.L.C. v. Attorney General, Florida struck down the Federal law. The Court rejected the argument that social media platforms were “common carriers,” citing the Telecommunications Act of 1996’s explicit differentiation between “interactive computer services” and “common carriers or telecommunications services,” and the unique protections Section 230 provides to social media companies that are not available to any “common carrier.” The Court also held Florida did not have the authority to proclaim Platforms were “common carriers” and strip them of First Amendment protections. Instead, the Eleventh Circuit determined the Platforms’ content moderation decisions were an exercise of constitutionally protected “editorial judgment” and self-expression. Thus, the Court declared the law unconstitutional, reasoning while the content-moderation law warranted review under strict scrutiny, it would fail even intermediate scrutiny for lack of a substantial or compelling state interest.
Whether or not a social media platform’s content moderation policies constitute speech protected by the First Amendment carries serious implications for the future of online discourse. Some commenters are very concerned about Paxton’s implications for States’ abilities to compel speech, and whether it would unleash a wave of frivolous litigation against platforms. They worry that limiting platforms’ ability to moderate content will undermine communities’ ability to deal with hate speech and empower governments to decide what content and communities are available for users. Still, other commentators argue the Fifth Circuit was correct and that content moderation decisions lacking explanation should not be protected by the First Amendment like expressive speech is. But even those who support a larger role for States in regulating content moderation policies have expressed discomfort with what they see as the Fifth Circuit’s “absolutist” opinion.
It stands to be seen how the Supreme Court might step into the circuit split created by these opinions. NetChoice has filed a petition for certiorari to the Supreme Court in Paxton. Florida has also petitioned for a writ of certiorari to the Supreme Court to appeal the Eleventh Circuit’s decision. A response to that petition is due October 24th.