Big Tech and some of their libertarian fellow travelers are freaking out over this sensible ruling by Judge Andy Oldham that Big Tech censorship isn’t protected by the First Amendment.
“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” Judge Andrew S. Oldham of the U.S. Court of Appeals for the Fifth Circuit, which is known to be conservative, said in the court’s ruling. One member of the three-judge panel dissented from portions of the ruling.
The background here is that some states, including Florida and Texas, passed bills protecting the civil rights of people targeted by Big Tech censorship.
The Texas law in question here “regulates platforms with more than 50 million monthly active users… in enacting HB 20, the Texas legislature found that the Platforms “function as common carriers, are affected with a public interest, are central public forums for public debate, and have enjoyed governmental support in the United States.” It further found that “social media platforms with the largest number of users are common carriers by virtue of their market dominance.” And banned political censorship.
Big Tech responded by claiming that preventing it from discriminating against people over their political views was a violation of its First Amendment rights.
This is literally arguing that censorship is freedom. Way to make 1984 a reality.
I pointed out that the argument was dishonest nonsense because the same Big Tech monopolies and their lefty allies saying this were also vocally demanding net neutrality.
Big Tech already dismantled all the arguments it’s putting forward with Net Neutrality.
If a digital service picking and choosing its content is a First Amendment right, then why don’t cable companies have the same right to bar access to the harmful content on Twitter?
A trade association whose members include Twitter and Facebook insists they have a right to ban the President of the United States and any conservatives because that’s free speech, but that AT&T or Comcast don’t have the right to ban access to Twitter because of free speech.
If censorship is also free speech then that cuts both ways. Otherwise it’s free speech for me, but not for thee, which is exactly the argument that Big Tech’s lobbies and front groups are making.
And if the First Amendment mandates the right to deny services then coffee shops that stopped black people from buying there have the right to do so. And civil rights is unconstitutional.
Obviously, they don’t believe this is true.
Considering the growing role of government influence on Big Tech censorship, it’s really state action and a First Amendment violation. Furthermore a coalition of Big Tech monopolies assembling a trust to censor and suppress the political views of half the country in order to allow its leftist allies total power while helping them win elections is an even bigger crisis.
The sort of thing lefties would call, “an attack on democracy”.
Judge Oldham’s ruling totally defenestrated the entire Censorship is Freedom argument.
”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,” he writes.
“Section 7 does not chill speech; if anything, it chills censorship,” he points out.
“Section 7 does not regulate the Platforms’ speech at all; it protects other people’s speech and regulates the Platforms’ conduct.”
“Tellingly, the Platforms have pointed to no case applying the overbreadth doctrine to protect censorship rather than speech.”
Unsurprisingly, there isn’t one.
“Additionally, unlike individual citizens potentially subject to criminal sanctions—the usual beneficiaries of overbreadth rulings—the entities subject to HB 20 are large, well-heeled corporations that have hired an armada of attorneys from some of the best law firms in the world to protect their censorship rights.”
“The Platforms contend, Section 7 somehow burdens their right to speak. How so, you might wonder? Section 7 does nothing to prohibit the Platforms from saying whatever they want to say in whatever way they want to say it. Well, the Platforms contend, when a user says something using one of the Platforms, the act of hosting (or rejecting) that speech is the Platforms’ own protected speech. Thus, the Platforms contend, Supreme Court doctrine affords them a sort of constitutional privilege to eliminate speech that offends the Platforms’ censors. We reject the Platforms’ efforts to reframe their censorship as speech. It is undisputed that the Platforms want to eliminate speech—not promote or protect it. And no amount of doctrinal gymnastics can turn the First Amendment’s protections for free speech into protections for free censoring.”
You can tell that Judge Oldham’s ruling is good because all the right folks are squealing like stuck pigs.
It seems to me that platforms for discussion online are offering the same service that telephone companies offer. The limits on free speech that have been permitted in constitutional law apply, but online services have been far exceeding such limitations. They have consistently based their censorship on their own political positions. Excuses such as violent content are fig leaves for their bias, but fail to reduce their exposure when it is not the actual reason for their actions. The excuse of misinformation likewise. If the ability to speak with others is the service provided, then when that service is denied the provider is fraudulent. Comparing their business with a coffee shop ignores the fact that a coffee shop is not in the same business. The issue is business providing what it claims it offers and takes money for. and when its offer to the general public can be withdrawn from individuals.
All of their arguments are sophistic and ridiculous, aren’t they?
I don’t even believe they are “platforms,” The “publisher” description is the accurate one. They don’t provide a platform for free speech, they publish what they like and censor what they hate.
This is a good ruling. We’ll see if it’s enforced.
It might have to go to the Supreme Court, but if it does we can hope that freedom of speech becomes the law of the land. Wouldn’t that be revolutionary?
That would be wonderful. Fortunately there are no courts between the circuit courts and the Supreme Court so no activist judge can overturn Oldham’s decision.
Corporations have a massive advantage over individuals and smaller organizations, which has a chilling effect on free speech. We already have to self-censor in order to avoid getting shut down, which generally happens without warning or opportunity for redress (what’s the word, I forget).
We’re already in a kind of Samizdat stage, like in the USSR, having to make end runs around the powers that be. Like the old jokes that were popular in the Soviet Union, that expressed what the people really felt.
Here’s one I just looked up that made me laugh 🙂
“The regional KGB headquarters in Arkhangelsk suffered a major fire and was almost completely destroyed. Shortly after, a man called looking for help.
“I’m sorry, we can’t do anything,” said the receptionist. “The KGB has burnt down.”
Five minutes later, the receptionist received another call. “I’m sorry, we can’t help. The KGB has burnt down.”
Another five minutes passed, and the phone rang again. The receptionist recognised the voice as the man who’d twice called previously.
“Why do you keep calling? I told you that the KGB has burnt down.”
“I know. I just like hearing it.”
“Lol, hadn’t heard that one.
We pretend to work, and they pretend to pay us,” is one of my favorite Soviet one-liners from those days.
Yeah, that’s one of the best. I often think about that one 🙂
I laughed at that joke! 🙂
All those internet platforms are modern day town squares. Regardless who owns the square, once the square is opened for public use It becomes public utility. Those companies can’t have it both ways. If the phone company can’t shut your service because what you said on their phone line, neither facebook or any other on-line service.
Yes, that was the Texas position. If you’re going to be a monopoly, especially.
Excellent post, and it’s an impressive ruling founded on the Rule of Law – that is, on the rule that all of us must have equal footing under the law to enjoy both the benefits and the privileges of our community that correspond to our duty to defend it and pay taxes.
What’s missing is ‘public accommodation.’ Which must be considered sooner or later. The 1A argument will ultimately fail unless the platforms are forced to conform to the rules for all utilities under the Interstate Commerce Clause of the US constitution. The 5th Circuit alludes to this – and I would expect it’s brought up in the full opinions somewhere.
G-d bless everyone here …
Very true.
If the government could designate every single coffee shop a public accommodation and ban segregation, how exactly are Google and Facebook not subject to rules on discrimination?
Section 230 of the Communications Decency Act of 1996 gave Internet “platforms” immunity from liability for material posted by third parties on their sites because they exercise no editorial function with regard to such material. If they are now saying that they have the right to censor Constitutionally protected material then it seems to me they are admitting they are not “platforms” but instead are “publishers” with editorial control (which they exercise) and are no longer entitled to Section 230’s immunity which has been worth billions of dollars to them. Works for me. Lack of Section 230 protection would impoverish them all. Let the lawsuits commence.