Home » Articles » Case » Anti-Discrimination Laws » NetChoice v. Paxton (5th Circuit) (2022)

Written by Deborah Fisher, last updated on December 1, 2023

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Texas passed a law in 2021 barring social media companies from censoring users based on their viewpoints. The law was challenged in court and eventually upheld by the 5th U.S. Circuit Court of Appeals. The Texas law designates social media companies as common carriers, and, as such, says they can be held to non-discrimination obligations just like other common carriers like phone companies. (iStock illustration)

In NetChoice v. Paxton, the 5th U.S. Circuit Court of Appeals reversed an injunction against a new Texas law that barred social media companies from censoring speech based on the viewpoint of the user.

 

The court said that Texas permissibly determined that social media companies are “common carriers,” no different than Verizon or AT&T, and can be subject to non-discrimination laws.

 

At issue is how social media companies moderate their content, which includes blocking certain user content and eliminating the accounts of users. Some in the Republican Party have complained that social media companies, such as Twitter and Facebook, unfairly block content from conservative leaders and journalists.

 

“The implications of the platforms’ argument are staggering,” the ruling said. “(I)n the platforms’ view, 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…

 

“Today, we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” said the opinion, written by 5th Circuit Judge Andrew S. Oldham.

 

The 5th Circuit adopted a logic opposite from the 11th U.S. Circuit Court of Appeals, which a few months earlier in NetChoice v. Attorney General of Florida ruled that a similar Florida law, the “Stop Social Media Censorship Act,” was likely violative of the First Amendment. The 11th U.S. Circuit viewed the social media companies’ actions to moderate content on their platforms as an editorial function of a private company over which government has no power. Just as the government can’t tell a newspaper or TV station what to publish or broadcast, it can’t tell a social media company what content to allow on its platform.

 

Both decisions have been appealed to the U.S. Supreme Court, which has not yet accepted or denied review.

 

Texas law prohibits social media from censoring based on viewpoint

 

The 5th Circuit rejected arguments that the Texas law violates a social media platform’s First Amendment right to speech through the application of its editorial policies.

 

The Texas law prohibits social media platforms from censoring a user, a user’s expression, or a user’s ability to receive the expression of another person based on the viewpoint of the user or the user’s expression.

 

“Censor” under the Texas law means “to block, ban, remove, deplatform, demonetize, deboost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”

 

The law does not limit censorship of expression that “is specifically authorized to censor by federal law,” involves sexual exploitation of children or harassment of sexual abuse victims, or consists of “specific threats of violence targeted against a person or a group because of their race, color, disability, religion, national origin, or ancestry, age, sex, or status as a peace officer or judge.”

 

The 5th Circuit observed that an observer would not construe the act of hosting speech on the platform as an expression of the social media company’s support of the message, and the law did not prohibit the platforms from saying whatever they wanted to say or disassociating themselves from any views expressed by users on the platforms.

 

The court also found that the law was content neutral in regulating the speech of users on the platform and advanced an important governmental interest in protecting the free exchange of ideas and information in the state.

 

The lower district court had issued its injunction after finding that the social media platforms were not “common carriers” and were simply engaging in editorial discretion by managing and arranging content on their platforms.

 

But the 5th Circuit took the view that platforms were not “speaking” when they hosted other people’s speech. The court pointed to Section 230 of the Communications Decency Act, which says the platforms “shall (not) be treated as the publisher or speaker” of content developed by other users.

 

Section 230 was enacted to reduce exposure to defamation liability for internet companies that host content online and the court observed that the platforms have “long relied on and vigorously defended” their status of not being publishers. The court characterized their arguments now about their editorial decisions as “a stark about-face for this litigation.”

 

5th Circuit agrees social media companies are common carriers

 

The 5th Circuit agreed with the state of Texas that the platforms are common carriers. Under the common carrier doctrine, states have the power to impose nondiscrimination obligations on companies that hold themselves out to serve all members of the public.

 

Common carrier laws were initially imposed in the United States on transportation companies, such as railroads. The first communications industry to be subjected to common carrier laws was the telegraph. The court noted the history of this extension, saying that in the 1880s lawmakers were concerned that private entities could manipulate the flow of information to the public to serve their business or political self-interest. It noted how Western Union sometimes refused to carry messages from journalists that competed with its ally, the Associated Press, and how the Associated Press in turn denied news digest to newspapers that criticized the Western Union.

 

The social media companies argue they are not common carriers because they do not hold themselves out as open to everyone equally, but rather are only willing to do business with users who agree to their terms of service. They also contend they are not common carriers because they make editorial decisions about what to allow and not allow on their platforms.

 

The court, however, viewed this argument as “upside down.”

 

“The platforms appear to believe that any enterprise can avoid common carrier obligations by violating those same obligations” and discriminating against customers.

 

“We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” the court said. “The platforms are not newspapers. Their censorship is not speech.”

 

Judge Leslie H. Southwick dissented in part, saying that “(t)he majority’s perceived censorship is my perceived editing.”

 

“I see the platforms curating or moderating as the current equivalent of a newspaper’s exercise of editorial discretion.”

 

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