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September 21, 2022

The Babylon Bee's Seth Dillon Suggests He'll Be Suing Twitter Under the Texas Anti-Censorship Law In October

I believe he has to wait because the Fifth Circuit's decision still has to go back down to the district judge.

Seth Dillon @SethDillon

How's this for a timeline?

Sept 2021: Texas passes a law (HB 20) to protect free speech by limiting Big Tech's ability to censor based on viewpoint.

Sept 2021: Two trade groups representing Big Tech immediately filed suit to try and block the law.

Dec 2021: An Obama-appointed judge ruled in favor of Big Tech, blocking the law from going into effect. In his ruling, he said it would be unconstitutional to put limits on the ability of social media platforms to moderate content as they see fit.
Seth Dillon

March 2022: Twitter locks out the Babylon Bee for making a joke they didn't like.

Sept 2022: The 5th Circuit Court of Appeals overturns the earlier decision on HB 20, saying the law is constitutional because it chills censorship, not speech.

October 2022: The Babylon Bee sues Twitter.

Professor Margot Cleveland explains the Fifth Circuit's decision at The Federalist.

The court had to choose between several precedents which arguably controlled the ruling.

Two stood in direct contradiction: Miami Herald and Pruneyard Shopping Ctr.

In Miami Herald, the Supreme Court held that a Florida statute that required newspapers to grant political candidates the right to equal space to reply to criticism violated the First Amendment rights of the publisher. In reaching this conclusion, the Supreme Court stressed that the newspapers' decisions concerning the size, content, and treatment of public issues and public officials involved editorial control and judgment protected from state interference by the First Amendment.

So, the Tech Monopolists argued that they're like newspapers -- publishers, not platforms -- and cannot be required to air views that conflict with their own editorial position.

And of course note that this is in explicit contradiction with the idea of being a "platform" for purposes of s.230.

What is a platform? A platform is a neutral, well, platform upon which other people post their opinions and views. Unlike a publisher, which publishes its own views, and the views of people it invites to be published.

No one thinks that every one in the comments is posting "Ace Opinions," obviously. That's why I have immunity for opinions and even libel posted in my own interactive social media platform.

If they're publishers, they do not have immunity. They are subject to lawsuit like every other publisher on the face of the earth.

Conversely, in PruneYard Shopping Ctr. v. Robins, the Supreme Court held that the state could require privately owned shopping centers to allow individuals to distribute political literature without violating the mall owners' First Amendment rights. In upholding California's mandate, the high court reasoned that PruneYard did not involve the concerns present in Miami Herald, namely forced speech through the state telling a newspaper what to print.

So there, the Court found that the state can require someone maintaining a large public space where people congregate in large groups to permit people to engage in political messaging.

Gee, would monopoly social media platforms with 50 million+ users count as large public spaces?

Professor Cleveland analyzes the other cases the Fifth Circuit cited in its decision, but I'll refer you to the article for those. But this one seems especially important:

Next up was Pacific Gas & Electric Company v. Public Utilities Commission of California. In that case, a plurality of the Supreme Court declared unconstitutional California's mandate that the utility company let third-party groups include newsletters in the billing statements Pacific Gas sent to customers. In Pacific Gas, the Supreme Court distinguished PruneYard, by stressing that allowing the third-parties' speech did not affect the shopping center owners' exercise of their own right to speech, while mandating the inclusion of a third-party's newsletter affected Pacific Gas's ability to showcase its own speech, relative to the voice of its opponents.

So the takeaway there is that the courts have previously found that there is no harm in requiring an entity to permit people sharing their views on their property so long as the owner of that property is not harmed as far as his own ability to speak.

Obviously, behemoth tech monopolies are not injured in their ability to get their monopoly message out if TrumpFan69 is allowed to say "Hunter Biden is crackhead."

That's what the Fifth Circuit concluded:

After detailing these five decisions, the Fifth Circuit majority concluded that precedent teaches that for a "speech host" to mount a successful First Amendment challenge, he must show that "the challenged law either (a) compels the host to speak or (b) restricts the host's own speech." For instance, in Miami Herald, the challenged law mandated newspapers "speak" by publishing a politician's response, and in Hurley, the law required the parade organizers to alter the message conveyed by the parade, while in Pacific Gas, the state's requirement that the utility company dispatch third parties' newsletters restricted the company's own ability to speak.

Conversely, in both PruneYard and Rumsfeld, speech was neither compelled nor restricted. According to the Supreme Court's reasoning in PruneYard, allowing access to the mall did not affect the property owner's speech: The owners were neither forced to communicate a message nor prevented from engaging in their own speech. Likewise, in Rumsfeld, the educational institutions required to provide equal access were not forced to speak nor deterred from speaking on their own.

This analysis led the Fifth Circuit to conclude that HR 20 passed constitutional muster, with the majority finding that the law more closely resembled the situations in PruneYard and Rumsfeld. Specifically, HR 20 required the tech companies to provide equal access and nothing more. The users' speech also does not become the tech companies' speech, the majority stressed, and the platforms remain free to speak as they see fit, by disavowing or distancing themselves from posts. In fact, as the Fifth Circuit stressed, several platforms already do this by adding disclaimers to users' posts.

In the rest of her article, she discusses the Eleventh Circuit's decision against a similar law, and the likelihood of a Supreme Court review of both.

The Fifth Circuit's ruling seems like a rock-solid analysis and decision to me. The Eleventh Circuit just seems to be issuing ipse dixits to the Florida's arguments -- "It is this way because we say it's this way."

Eh, that's not fair. I haven't read it. I've only read Professor Cleveland's brief recap of their conclusions.

It might also be the case that the Florida law actually di impose an "undue burden" on tech monopolies by requiring them to explain, with specificity, the reasons for every censorship decision with seven days of that decision, which might in fact be nearly impossible. So there might just be a practical reason why that law does not pass muster.

I think the Supreme Court will be highly tempted to accept that analysis as its own when they grant certiorari and review this case as well as the Eleventh Circuit's ruling. See Margot Cleveland's article for fuller discussion.

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posted by Ace at 02:56 PM

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