The Fifth Circuit Gets the Right to Editorial Freedom Very Wrong

Thomas A. BerryIn September of last year, Texas passed a law declaring that large social media platforms are “common carriers” subject to onerous regulations over who and what they can host. The law prohibits platforms from removing, demonetizing, or blocking a user or a piece of content based on the viewpoint expressed. Platforms found to violate this requirement face liability for each piece of conte nt they remove.NetChoice, a trade association of online businesses, sued to block the law on First Amendment grounds, among other claims. A federal district court in Texas ruled in favor of NetChoice and preliminarily enjoined the law. Texas appealed to the Fifth Circuit, where Cato filed anamicus brief supporting NetChoice. After the Fifth Circuit let the law go into effect without a written opinion, NetChoice filed an emergency petition to the Supreme Court (which Cato againsupported), and the high Court put the stayback in place by a 5-4 vote.Last Friday, however, the Fifth Circuit finally issued a writtenopinion on the merits and lifted the stay once again, holding (by a 2-1 vote on the key issue of the speech-hosting requirements) that the law complies with the First Amendment.The Fifth Circuit ’s opinion is notable and startling for its complete rejection of a First Amendment right to editorial freedom, a right that the Eleventh Circuit recentlyaffirmed in a decision blocking a similar Florida social media law. Indeed, on this crucial issue, the Fifth Circuit got ex...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs