A panel of judges in the Fifth Circuit Court of Appeals has decided that “editorial discretion” is no longer a protected right under the First Amendment—because the judges are upset that Donald Trump was removed from Twitter.
I know that sounds impossible, but it’s exactly what happened.
“[T]he Supreme Court’s cases do not carve out ‘editorial discretion’ as a special category of First-Amendment-protected expression,” the court said, opening up a pandora’s box of potential mischief.
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The ruling is fractally wrong in the most frustrating ways. Just to understand any part of why it’s wrong, we could explore multiple layers of wrongness before even getting to why the final pronouncements in this ruling are wrong. (Writing this article is a struggle, as for each paragraph I was tempted to write an entire separate article detailing the underlying wrongness, but we only have so much space.)
SO, SO VERY WRONG
An astoundingly incomplete list of problems with the majority opinion include: it’s wrong about how the First Amendment works and the extent of what it protects; it gets so twisted up in its own made-up logic that it pretends the First Amendment limits private actors, rather than governments; it is so confused by how Section 230 of the Communications Decency Act actually works that the judge rewrites the law to say something it does not; bizarrely, it pretends that a law the court itself misrepresents (Section 230) is somehow relevant to the interpretation of the Constitution (which is not how anything works); it adds an element to the law it is analyzing that literally does not exist; it wholly ignores vital Supreme Court precedents; it pretends the plaintiffs waived a key argument they explicitly did not; it invents elements of common carrier law that do not exist; and it ignores the dormant commerce clause of the Constitution, which limits states’ ability to regulate interstate commerce.
And that’s not even getting into the procedural problems of the case, such as the way it completely misunderstands how content moderation works (for example, the judge repeatedly insists that concerns about Nazis and terrorists on social media are entirely “hypothetical” and mocks the plaintiffs for their “obsession” with them). And then there are the many historical inaccuracies littered throughout the opinion.
The ruling reads like an uninformed social media thread that actual lawyers would mock.
The cynical will point to things like the Supreme Court’s decision in Dobbs (which overturned Roe v. Wade) and note that we’ve entered an era of Calvinball jurisprudence—in which precedents are no longer an impediment to whatever endgame Federalist Society judges want. (The beloved comic strip Calvin and Hobbes introduced us to the concept of “Calvinball”—a sport in which the participants make up the rules as they go, never using the same rules twice.)
But in some ways this decision is even more ridiculous. There are pockets of the conservative world that have spent 50 years honing arguments to overturn Roe. The opposite is true when it comes to upending the First Amendment.
Indeed, the same forces that worked to overturn Roe spent nearly the same amount of time working to strengthen and expand judicial recognition of the First Amendment rights of companies—from allowing a baker to choose not to decorate a cake, to allowing companies to cite the First Amendment as a reason not to provide contraception as part of a health plan, and deciding that the First Amendment did not allow Congress to bar certain types of expenditures in support of political candidates.
No matter how you feel about Masterpiece Cakeshop, Hobby Lobby or Citizens United, all three were cases driven by conservative arguments that relied heavily on the fundamental position that the First Amendment barred restrictions on corporate expression, including the right to not be forced to endorse, enable, or support certain forms of expression.
As First Amendment lawyer Ken White noted back in the comparatively innocent days of November 2016, regarding Donald Trump’s call to open up our libel laws, “You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn [key First Amendment precedents.]”
But then Twitter banned former President Trump in the wake of the Jan. 6 attack on the Capitol.
And, suddenly, a large part of the conservative world began arguing that the First Amendment might no longer apply to companies.
This formerly bedrock principle among conservatives—that the First Amendment rights of corporations were sacrosanct—got tossed out the window. In quick succession, many states with Republican-majority legislatures proposed laws to restrict how social media websites could moderate. Florida was the first to get its bill signed into law, followed rapidly by Texas, where HB 20 sought to bar “censorship” of viewpoints by large social media platforms.
Both laws were immediately challenged in court by trade groups representing many internet companies, and district court judges found both laws to be quite obviously unconstitutional. The states appealed those rulings, and both cases were heard by appeals courts this spring.
It would take another entire article to explain the procedural wackiness that followed, but the very abbreviated version is that while the 11th Circuit considered the appeal of Florida’s law, the 5th Circuit panel heard the appeal of Texas’s law, and just days later—without any explanation, but promising one at a later date—said that the lower court was not just wrong, but that Texas’ law should go into effect immediately. Normally, there would be an opinion explaining this and a procedural pause, allowing for normal appeals. This resulted in a very rapid request for the Supreme Court to intervene. While waiting for that to happen, the 11th Circuit wrote a long and detailed explanation again pointing out how Florida’s law was still mostly unconstitutional. Then the Supreme Court put the 5th Circuit’s ruling on hold (without explanation, but likely due to the procedural oddity of it all).
Just a few days ago, Florida asked the Supreme Court to review the 11th Circuit's ruling. And while they were getting that together, four months went by, and many people forgot that the 5th Circuit never gave its reasoning for trying to turn the Texas law back on.
That changed last week with the release of this opinion, reinstating Texas’s law and disagreeing with the 11th Circuit.
A TALE OF TWO FEDERALIST SOCIETY JUDGES
It's worth noting the similarities between Judge Kevin Newsom, who wrote the 11th Circuit decision finding Florida’s law unconstitutional, and Judge Andy Oldham, who wrote the 5th Circuit decision finding Texas’s law perfectly constitutional. Both are in their forties, went to Harvard Law, and clerked at the Supreme Court. Both were appointed by Donald Trump. Both were members of the Federalist Society. Both were lawyers for state governments (Oldham was deputy solicitor general in Texas, and general counsel to Gov. Gregg Abbott; Newsom was solicitor general in Alabama).
Yet Newsom presented a pretty typical ruling that highlighted the relevant Supreme Court precedents and the nature of the First Amendment—and made it quite clear that Florida’s law sought to force companies to give up their editorial discretion, and thus was unconstitutional.
In normal First Amendment cases, this is basically how it works.
There is a very limited set of exceptions to the First Amendment, and, traditionally speaking, if a law impacts speech, the courts are going to say it’s unconstitutional. In this case, the main issue was that these laws effectively compelled speech by not allowing websites to delete or otherwise moderate speech they felt was problematic.
There are many, many Supreme Court cases that have made it clear that compelled speech is unconstitutional, editorial discretion is protected by the First Amendment, and the First Amendment’s “association” rights include the right not to associate with speech.
There are very few exceptions to this, and all had been (until this ruling) narrow cases that were extremely fact specific at the time of their ruling, and generally have since been narrowed down to effectively nothing. The Supreme Court has been extremely reluctant to expand any of them, basically limiting the exceptions to the very narrowly laid out reasons in cases from decades past.
Here, Judge Oldham went rogue.
First he went on, at length (oddly), about “the original public meaning” of the First Amendment, waxing poetically about Blackstone’s Commentaries (William Blackstone, an English jurist, wrote those before the United States, let alone its Constitution, existed), which suggests that the concept of free speech is limited solely to prohibitions on prior restraint (the government saying “you can’t publish that”) and not to any of the other rights we’ve long associated with the First Amendment—including editorial discretion, rights of association, rights of anonymity, and much, much more.
This whole digression made no sense to legal experts.
Oldham even chides the plaintiffs for failing to discuss this “original understanding” of the First Amendment and instead merely relying on Supreme Court precedent. As an acknowledgement that Supreme Court precedent is meaningless in a post-Dobbs world—where Supreme Court justices magically become expert legal historians—perhaps that makes sense. But back in the normal world, relying on Supreme Court precedent is how all such cases normally play out. Here, Judge Oldham completely ignores Reno v. ACLU, which explicitly lays out why the First Amendment applies on the internet, and that you can’t treat the internet like broadcast or telco systems that involve scarcity of services. Indeed, he repeatedly cites other cases that focus on compelled speech within scarce systems—including telecom and broadcast TV.
He brushes off the Supreme Court’s ruling in Manhattan Community Access Corp. v. Halleck (a case the 11th Circuit properly relied on to invalidate Florida’s law) in a footnote, saying it was about “public forums” rather than private ones. But that’s exactly backwards. Halleck, a 2019 case with the majority decision written by Justice Brett Kavanaugh, explicitly says that a “private entity may thus exercise editorial discretion over the speech and speakers in the forum.”
Oldham not only insists that it doesn’t say this, he also insists (again contrary to that very sentence) that the Supreme Court does not recognize a right to “editorial discretion.” Instead, Oldham seems to think that if he just calls editorial discretion “censorship” at every turn, he can insist it’s not covered by the First Amendment because, in his words, if Texas’s law “chills anything, it chills censorship.”
But remember (because Oldham apparently does not), the First Amendment only restricts government censorship. By definition, it cannot restrict a private company’s editorial choices even if you call them censorship. Oldham ignores this, and insists it’s fine for the government to restrict editorial rights, so long as it calls those editorial rights “censorship.”
While Oldham ignores those key Supreme Court cases, he does cite others, relying heavily on two cases where the Supreme Court allowed the state to compel property owners (in one case a shopping center, in another a law school) to allow speakers on their property. These two cases are extremely limited in scope (and later rulings have further limited those rulings). But Oldham more or less treats them as “the Supreme Court said that it was okay to compel speech there, therefore Texas can compel speech here.” But to insist that social media sites (which are in the business of publishing) are more like a mall than a newspaper is not just bizarre, it misreads the rulings in all of those cases.
Indeed, Oldham’s ruling runs into the trope-like problems normally associated with non-lawyers arguing for speech restrictions: insisting that because of one narrow exception to the First Amendment, any exception is possible.
Oldham’s bizarre First Amendment analysis bends over backwards to insist that social media sites are nothing like newspapers, arguing that because newspapers handle editorial discretion ex ante (before publication), they are somehow protected against government compelled speech. But since social media does its moderation ex post (after the content is posted), it loses its First Amendment rights to moderate.
Again, this is wrong. First off, most large social media sites actually do a fair bit of ex ante moderation, using filters and AI to screen out some problematic content and block it from being posted. But more importantly, nothing in Texas’s HB 20 law says it doesn’t apply to you if you first review all the content before it goes on the site. The law still applies. Oldham seems to think this magical distinction is somewhere in the law, when it is not.
SECTION 230 DOES NOT SAY THAT
Equally egregious, Oldham confuses Section 230 in a manner akin to internet trolls. He notes that, because the law says that you cannot hold interactive computer services liable as if they were publishers, that means they have declared themselves not to be publishers, and therefore cannot avail themselves of the First Amendment’s protections for publishers.
This is a legalese version of the nonsense myth that Section 230 requires websites to declare themselves a “publisher” or a “platform.” The law does no such thing. But Oldham pretends it does.
Even worse, to make all this work, Oldham literally rewrites Section 230 on the fly, claiming (falsely) that it “only considers the removal of limited categories of content, like obscene, excessively violent, and similarly objectionable expression.”
This is wrong in three separate ways (actually, more, but I’ll just cover the most egregious three).
First, he leaves out that Section 230 explicitly states that it protects removals based on what the provider considers to be objectionable, not the state. That is, it makes it clear that the site itself gets the editorial discretion. Second, he limits the full list of content that is described (which goes way beyond obscene and excessively violent) and leaves out that it makes clear these removals are protected even if such content may be “constitutionally protected.” And third, most egregiously, he rewrites the law to say “similarly objectionable” (suggesting it must be similar to other items in the list) when the law actually says “otherwise objectionable.” The combination of “the provider considers” and “otherwise objectionable” has always made it clear that the sites (not the government) have the leeway to decide.
Oldham literally needed to rewrite the law to pretend otherwise. And I’m pretty sure that the judicial branch is not supposed to rewrite laws to pretend they say something they don’t.
Based on all of these (and many more!) mistakes, Oldham gets to pretend that the First Amendment does not apply to editorial discretion (it does). He pretends that social media sites’ reputations are not tied up in what is posted on their sites (they are, as made clear by Bob Iger’s recent admission that Disney decided to not buy Twitter because of all the “hate speech” which would hurt Disney’s brand). Oldham insists that Nazi and terrorist content on sites is merely a “hypothetical” problem, rather than something sites deal with every day (again, belied by both reality and Iger’s comments). And he pretends the First Amendment can bind private companies.
It goes against a century’s worth of First Amendment precedent. It goes against decades’ worth of (mainly conservative) jurisprudence regarding the First Amendment rights of corporations. It selectively rewrites inconvenient laws.
But hey, it might let Texas force Twitter to return Donald Trump’s account, so who cares about all that?
In all likelihood, the Supreme Court will need to review this ruling (perhaps in combination with Florida’s appeal). Justices Clarence Thomas and Samuel Alito have been making noise about how they view content moderation similarly (even if this means both justices need to completely ignore multiple previous opinions they’ve signed onto). It’s unclear how the rest of the court will rule.
Justice Kavanaugh is likely the key vote, as his ruling in Halleck is so clearly on point, and so recent, he’d need to reverse nearly everything he wrote just a few years ago to embrace this 5th Circuit interpretation.
A few years ago that would have been seen as impossible. But so too would have been a conservative, Federalist Society judge in the 5th Circuit deciding that private companies have no editorial discretion and that the state can compel them to host content they wish not to associate with.
It’s Calvinball.
