Net Choice, LLC, et al., v. Paxton, Attorney General of Texas, No. 21-51178 (5th Cir.) September 16, 2022.


Plaintiffs are internet technology platforms which have objected to recently-enacted Texas legislation intended to preclude viewpoint censorship.  Plaintiffs argue that the bill on its face violates the platforms’ First Amendment rights.

A three judge panel of the Fifth Circuit  has published its perceptionthat Net Choice and other plaintiffs have an inverted view of the First Amendment, which assures persons of the right to freedom of speech but which does not incorporate a corollary, but unenumerated, right to restrain speech.  In its September 16, 2022 opinion, the panel stated:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.

Slip op. at 2.

The panel dismissed the notion that, as the platforms would have it, providers could terminate the accounts of anyone, particularly anyone articulating a disfavored view.

A platform might achieve market dominance by promising free speech, yet once ensconced as “the monopolist of ‘the modern public square’,” the platform might about face to cancel and ban anyone the platform’s employees might choose to disfavor.  Slip Op. at 2, citing Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

The Texas bill in question precludes large media platforms from engaging in viewpoint discrimination with respect to access, excepting non-protected speech and speech specifically restricted by federal law, such as speech harmful to minors or other protective measures. Slip op. at 4.  Those who are restricted and believe this to be wrongful may seek relief in courts.  The state also might enforce the statute.

In addition, platforms must publish their moderation and use policies to the state concerning their moderation activities and actions, and mandates a complaint and appeal process for the platform’s users.

The Fifth Circuit panel noted that pre-enforcement facial challenges to to new laws, particularly any law concerning speech, are disfavored. Not only are courts constrained to decide only cases and controverses, but also federalism and comity concerns arise when federal courts review state laws before states have had the opportunity to do so.   To this must be added the extraordinarily high standard that attaches to facial challenges:  the challenging party must show that under no circumstances could the law in question be valid.

Here the challenge is one of overbreadth, a judicial doctrine intended to avoid chilling speech or association.

In this case the concern is not one of chilling speech, but of chilling censorship.  Censorship is inconsistent with the ‘pure speech’ that the overbreadth doctrine addresses.  Censorship is, at most, expressive conduct, to which only the most attenuated protections might attach.

No case directly supporting facial application of the overbreadth doctrine to censorship has been found, the court observed, and the as-applied challenges the platforms cite were presented when there were concrete challenged applications, unsuitable for use as a mechanism for invalidating a statute not yet operative.

Overbreadth challenges are intended to protect strangers to the litigation who could not lodge as-applied cases and whose speech would be chilled by an overly broad law.

The Fifth Circuit squarely rejects the notion that the Texas legislation inhibits speech by inhibiting platforms’ removal of speech, denouncing as inapt the platforms’ attempts to recast their censorship as protected speech.

The court also has declined to locate within the platforms’ notions of ‘editorial discretion’ any specifically protected speech interest.  Section 230 of the Communications Decency Act of 1996 hinders rather than advances the platforms” arguments.

The panel did not favor the planforms’ strained construction of censorship as speech to be protected, while nonetheless insisting no speech is involved in invoking the protections of Section 230.

Even if editorial discretion could be seen as a protected legal category, advanced content arrangement and censorship could not meet qualification as a protected category.  No such category of individual discretion has been recognized.  As the Texas stattue neither forces the platforms to speak or interferes with their speech, the Texas legislation is not constitutionally defective.

While standing alone the Texas statute is constitutionally sound, Section 230 removes all doubt, for it specifically states that platforms are not publishers or speakers when they host others’ content.

The appellate panel has concluded that Texas was correct in characterizing the social media platforms as “common carriers’ subject to nondiscrimination regulations.”  Slip op. at 53.

The court rejected the platforms’ assertion that the platforms are not part of the communications industry, for their own representations confirm that communications is their purpose.  The platforms hold themselves out to the public as ‘traditional’ common carriers do, ostensibly serving all on the same terms.  Slip op. at 54.

The court also rejected the idea that platforms might elide that common carrier obligations by  promulgating their own internal regulations for use.  This is immaterial, in that the same terms apply to all.

The circularity of the platforms’ argument that they are not common carriers because they engage in viewpoint discrimination, a position offered in order to avoid common carrier regulation is “upside down,” much as is the argument that they cannot be common carriers because they remove some obscene speech, as the law permits this, much as transit carriers would be permitted to oust ill behaved riders.  To put a fine point on it:

The Platforms offer no reason to adopt an ahistorical approach under which a firm’s existing desire to discriminate against its customers somehow gives it a permanent immunity from common carrier nondiscrimination obligations.

Slip op. at 55.

Moreover, at this time it is difficult to avoid recognizing that the public interest in a wide swath of  topic’s underlies and informs much, if not most, use of social media and other internet platforms.

Several federal courts of appeal have recognized platforms as public forums.  Slip op. at 56. Where such platforms serve as central locations for public debate, exclusion from the forums is exclusion from public debate.  Slip op. at 56.  Additionally, the platforms are central operators in economic life, generating wealth through advertising and access.  Platforms may become entrenched in a particular area that cannot be reproduced by competitors, and thus is irreplaceable to users.

Government licensing is not necessary to establish common carrier monopoly, but if it were, Section 230 would suffice.

The platforms’ arguments about state nondiscrimination rules applicable to common carriers overlook that challenges to such laws were successful only where the laws did not further anti-discrimination but supported discrimination.  Other cases from the Lochner era have been long ago been discredited and cannot be revived now.

The platforms’ similarity to common carriers only undermines their assertion that their speech rights are involved.  Common carriers transport the speech of others, but this does not involved any speech rights of the carriers.

Even if the platforms’ speech interests were implicated, facial pre-enforcement relief could not be granted where the content and viewpoint neutral legislation would survive intermediate scrutiny.

The platforms’ complaints about what they assert are burdensome disclosure and reporting requirements do not merit pre-enforcement relief, and the platforms do not point to any impingement on any First Amendment rights that would arise during compliance.  Moreover, any additional effort needed to tailor existing complaint processes does not imply any chilling effect, as the processes are intended to impede censorship, not speech.  Hypothesized flaws in the process do not merit pre-enforcement review, because the platforms cannot show that the lion’s share of the legislation is unconstitutional.

The Fifth Circuit has declined to follow the eleventh Circuit, which recently enjoined a Florida law inhibiting platforms” censorship.  The Florida law only concerned censorship of politicians campaign speech. The Florida law “prohibits all censorship of some speakers, while [the Texas law] prohibits some censorship of all speakers.”  Slip op. at 80.  Moreover, the Florida law implicated the platforms’ own speech by forbidding the platforms from adding addenda to others’ content.   Finally, the fines to be levied under the Florida law are onerous when compared with the non-monetary equitable relief provided to platform users by the Texas law.

The Fifth Circuit does not join the Eleventh Circuit’s view that there is a recognized category of protected speech called “editorial discretion,” The Fifth Circuit further refuses to consider censorship as protected speech and further does not agree that the common carrier doctrine does not support the imposition of nondiscrimination obligations on the platforms.

In a separate concurrence, Judge Edith H. Jones agreed that forbidding censorship is not forbidding speech:

In particular, it is ludicrous to assert, as NetChoice does, that in forbidding the covered platforms from exercising viewpoint-based “censorship,” the platforms’ “own speech” is curtailed. But for their advertising such “censorship”—or for the censored parties’ voicing their suspicions about such actions—no one would know about the goals of their algorithmic magic. It is hard to construe as “speech” what the speaker never says, or when it acts so vaguely as to be incomprehensible. Further, the platforms bestride a nearly unlimited digital world in which they have more than enough opportunity to express their views in many ways other than “censorship.” The Texas statute regulates none of their verbal “speech.” What the statute does, as Judge Oldham carefully explains, is ensure that a multiplicity of voices will contend for audience attention on these platforms. That is a pro-speech, not anti-free speech result. 

Slip op. at 91.

Even if speech were involved, Turner Broadcasting v. FCC, 512 U.S.  622 (1994), found that, if speech is involved where cable companies choose channels, under intermediate scrutiny ‘must carry’ preferences are content neutral.  Cable companies did not need to modify their own speech, the mandated speech was not associated with the operators, and the selection of channels could silence competitors.

Additionally, even if the platforms are correct in arguing that Texas’ legislation might chill the platforms” speech, this will not survive a faction attack:

Case by case adjudication is a small burden on the Goliaths of internet communications if they contend with Davids who use their platforms. 

Slip op. at 92.

Judge Leslie H. Southwick separately concurred in part and dissented in part.  Judge Southwick agreed that a facial attack on a state law is unlikely to succeed and that the platforms’ businesses are of great public importance.  He rejected the idea that the court’s conclusions can be recast by an ill-fitting speech/conduct distinction.

The judge observed that what the majority perceives to be censorship he perceives to be editing, and editing in a novel format, having its closest analog in newspaper editorial functions which the Supreme Court has found to be protected First Amendment activity.  Slip op. at 96.

If the First Amendment is involved, this judge agrees with the Eleventh Circuit that the government does not have a substantial interest in preventing unfairness, but the private actors do have an interest in freedom to be unfair.   Slip op. at 108-109.

Moreover, prohibitions on the de-platforming or de-monetizing go too far in attempting to serve any interest the government may have in protecting the free flow of information.  Slip op. at 110.

The judge believes that the common carrier cases do not strip carriers — here, platforms — of a First Amendment right to their own speech. Slip op. at 110-111.  Similarly, Section 230 does not impact platforms’ rights to moderate content. Slip op. at 111. Section 230 exists to underscore that a platform that publishes third party content does not endorse it or adopt it as its own.

Although concurring with the panel’s judgment, Judge Southwick cautioned that when platforms make decisions about permissible speech and its presentation. the platforms are involved in activity which is protect by the First Amendment, which does not require fairness.  Slip op. at 113.

NetChoice, et al. v. Attorney General of Texas, No. 21-51178 (5th Cir.) Opinion issued September 16, 2022

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