5th Circuit Rules Social Media Companies Not Allowed To 'Censor' Texas Trolls
For decades, conservatives have insisted that corporations do not need any kind of regulations whatsoever, because the invisible hand of the free market will handle everything. They have even argued that civil rights laws are unnecessary, because public sentiment would lead to discriminatory businesses losing money and being unable to compete with businesses that don't discriminate. Now, anyone with half a brain can see through this nonsense, but they cling to it nonetheless — right up until they see bigots actually losing out in the free market, at which point they demand regulations.
On Friday, in a gross misreading of the First Amendment, the Fifth Circuit upheld a Texas law barring social media companies from "censoring" or "banning" users due to their political ideology, largely agreeing with the ridiculous right-wing argument that social media companies like Twitter and Facebook are "common carriers" like phone companies and therefore should not be allowed to moderate their platforms.
The opinion was written by Trump appointee Judge Andrew Stephen Oldham, joined by Reagan-appointee Judge Edith Jones. Bush II appointee Judge Leslie H. Southwick concurred in part and dissented in part.
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.
They really love that word, "muzzle."
To be clear, conservatives are not being kicked off Twitter or Facebook for their political ideology. No one has yet to be put in Twitter jail for extolling the virtues of supply-side economics or even for loving Jesus too much. They are being kicked off of these sites for repeatedly using racial slurs; harassing people based on their gender, race, religion, sexual orientation or gender identity; for spreading libelous conspiracy theories; and for pushing snake oil health products that could make people seriously ill. The fact that those who violate these very basic conduct rules are disproportionately politically conservative is no one's fault but their own.
Oldham tries to slippery-slope the situation by claiming that if social media companies are allowed to moderate their sites, "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."
Just to be clear, obscene or harassing phone calls are illegal in most states. If conservatives were to call people directly in order to say the things they have been kicked off of Twitter for saying, they could be held criminally liable. If they were to go to the "public square" and yell them, they could very well be arrested or at least asked to stop. That would certainly be the case if they were to go stand in the middle of Target and start yelling these things. Email companies are allowed to filter spam so that your regular emails are not drowned out by 87,000 emails about penis enlargement and diet pills.
Oldham also complains that Twitter nefariously presented itself as “the free speech wing of the free speech party" and "cemented itself as the monopolist of 'the modern public square,'" and then turned around and started censoring users. Except the thing is, it was the users who were pushing the site to do something about the trolls. People stopped using it and left the site because the good parts of it were outweighed by how incredibly unpleasant it was having 40,000 angry men typing rape threats at them all day. Having used Twitter in those days, I can tell you that it is remarkably more pleasant now than it was then (and it's still not always that great now).
As much as this is being presented as something that is meant to encourage free speech, it will ultimately have the effect — to borrow a term — of "muzzling" it. Without basic moderation and rules of conduct, social media sites will become toxic cesspools, essentially unusable for anyone other than right-wing trolls. They would be 4chan. They would be Gab. People don't want to spend their time on a website where they are harassed all day everyday. Eliminating the ability to moderate social media sites would have a silencing effect on the millions of people who don't want to deal with that shit.
4chan exists. Gab exists. Truth Social exists. Telegram exists. There is no shortage of sites where right-wing trolls can let their freak flags fly without worrying about being "censored," and where other people can go to enjoy them being that way, if that is what they are into. This is not about speech, it is about access to other people, which is not a right guaranteed in the Constitution. Certainly, if the Right were so incredibly concerned about censorship, they wouldn't be going around banning books, harassing librarians and crying about entirely optional Drag Queen Story Hours and sex-ed classes.
To be fair, this would also benefit the Right. A lot of social change and liberation has been driven by social media activism. Transgender users have used these platforms to come out and advocate for their rights and against transphobia. Black users put pressure on the media to seriously cover incidents of police brutality, which, prior to Eric Garner's death, were frequently ignored. Left-wing philosophies and causes that had largely been confined to academia and activism became more broadly known, and, as a result, more broadly popular. They haven't liked this very much, to say the least.
This will likely go to the Supreme Court, which may well side with the 5th circuit, and it would likely mean the end of social media as we know it. Too bad!
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse