Thread by @glakier

There has been a lot of discussion about the opinion the Fifth Circuit released last Friday upholding Texas’s new social media law. Lots of people have criticized the decision for getting the law wrong. 🧵 reason.com/wp-content/upl…

Indeed, the opinion engages in an unapologetic, dramatic, sometimes bizarre rereading of precedents we thought we knew. For First Amendment lawyers—well, for me—reading it feels like entering the upside down. But why exactly?

In this thread, I highlight a few of the really significant departures the opinion makes from established precedent. I focus on the non-discrimination provisions in the law because there’s more (much more!) than enough there for a thread.

This is the part of the Texas law that is most difficult to square under conventional First Amendment doctrine but also a part of the law that the Fifth Circuit declares it has “no doubt” is constitutional. Hmm…

What these innovations demonstrate, quite dramatically, is what @evelyndouek and I have called the “weirdness” of 1A law (using a technical term here)—in particular the new skepticism conservative judges are showing towards market-based free speech rules. lawreviewblog.uchicago.edu/2022/06/06/dou…

@evelyndouek Anyway, here’s a few of the surprising, unprecedented and, well, sometimes flat-out wrong claims in the 5th circuit opinion.

@evelyndouek First on the list of surprising moves: the opinion’s focus on original public meaning. The 5th Circuit *begins* with (what it says is) the original public meaning of the 1A, rather than by looking at the relevant Supreme Court precedents (of which there are MANY).

@OrinKerr has highlighted the strangeness of this approach. Why is it the job of a lower court to interpret the Constitution anew? But it is important to also note how useful it is to the Fifth Circuit’s rather radical attempt to reinterpret 1A law.

https://mobile.twitter.com/OrinKerr/status/1570900354061180929

This is bc all the evidence suggests that the original public meaning of the 1A (to the extent there was a singular public or meaning) was much narrower than what we think today. This allows the court to conclude that, at first blush, the Texas law is perfectly constitutional.

The fact that the Fifth Circuit also concludes that the law is constitutional even under the existing precedents means this part of the opinion isn’t terribly consequential. But it suggests that originalist reasoning may finally be penetrating free speech jurisprudence.

This is an area of law where there just hasn’t been too much originalism, because the interpretation of the First Amendment that history pushes us towards has been unpalatable to both conservative and more liberal judges. But that may be changing.

And for those of us who think the First Amendment extends more broadly than the white men who had the authority to speak out publicly about it in 1791 thought it did…. this is obviously very troubling (to say the least!).

The second surprising thing about the opinion is its almost complete dismissal of the idea that under existing precedents something called “editorial discretion” is constitutionally protected. In fact, this part of the opinion isn’t just surprising—it’s … shocking.

This is because a core principle of free speech law over the last few decades is that the 1A strongly protects the freedom of private media corps—and others—to decide for themselves what speech they will host. Editorial discretion is often the term used to describe this.

Yet the 5th Circuit breezily rejects this principle. It insists instead that the 1A protects the rights of property owners to decide what speech occurs on their property only when they are “intimately connected” with that speech, whatever that means.

Now I for one believe that current doctrine gives too much protection to property owners—and have argued as much in a # of articles. So I find the opinion’s rejection of this core principle of the laissez faire First A intriguing.

But. But. But. But. To the Court’s conclusion that the First A grants NO protection to editorial discretion—that newspapers only get protection for the editorial decisions because those decisions involve speech they are “intimately connected to”—goes way too far.

It suggests that media corps enjoy NO protection for the decision to not publish speech they are not intimately connected to. Can newspapers be forced to accept ads? Can cable corps be required to provide service on all their channels first come first served? Maybe YES?

The opinion reaches this conclusion by treating the owners of companies in the biz of speech as identical to the owners of other businesses. This allows it to conclude that because mall owners can be forced to open their property to speakers they dislike, platforms can be also.

But we might think—and certainly up until now the cases have assumed—that it makes a big difference if the property is used primarily for speech or not. Because if it IS that means the owner has free speech interests of its own right in what speech takes place on that property.

Again I think this principle is taken too far—it is used to obliterate any consideration of the competing free speech rights of the public or the user. But the Fifth Circuit commits the opposite sin: it erases the 1A rights of the platforms ENTIRELY from the equation.

On the Fifth Circuit’s view, the platforms have no right at all to moderate---sorry “censor”--- speech on their platform unless they are “intimately connected” with that speech. This is a very significant reworking of the existing precedents and one that has huge implications.

It allows the Fifth Circuit to suggest, for example, that the only kind of content moderation that could ever trigger First Amendment scrutiny is ex ante decisionmaking—because otherwise the platform isn’t (????) intimately connected to the speech it hosts.

It also impacts the court’s very strange overbreadth analysis, by leading the Fifth Circuit to conclude that there are no constitutionally protected rights that might be chilled by this law.

The third weird feature of the opinion I will highlight in this (already too long) thread: the court’s common carrier analysis. This is a section where the Fifth Circuit quotes me quite a bit so I suppose I should be complimentary BUT

The Fifth Circuit conveniently ignores other parts of my work 😂 in which I discuss the fact that, in the early 20th century, the effort to extend common carrier law to radio corps (because of similar fears about corp power as today) was soundly rejected.
harvardlawreview.org/2021/05/the-no…

Common carriage law was not extended to radio broadcasters b/c lawmakers recognized that doing so would DESTORY THE PUBLIC VALUE OF THE SERVICE by preventing radio broadcasters from selecting programs, formats, issues to focus on and making everything basically public access.

Ultimately, the courts recognized that, for this reason, radio broadcasters, like newspaper editors, enjoyed 1A protection for their (you guessed it) editorial discretion UNLESS and until their First Amendment rights were outweighed by the 1A rights of their audience.

The Fifth Circuit ignores this history and the parallels between radio and TV companies and social media platforms. It instead analogizes the social media companies to telegraph and telephone companies even though they operate TOTALLY DIFFERENTLY

Ordinarily telegraph and telephone companies operate by a content-neutral first-come first-served policy; but social media companies are constantly arranging, selecting, highlighting, and yes, excluding speech based on its content.

They play as a result very different roles in the mass public sphere and should, for that reason, receive different kind of constitutional protection.

Now it is true that existing First Amendment jurisprudence has done a terrible job of recognizing any of this explicitly—and is muddled in lots of other ways when it comes to common carriers.

So by returning the question of what makes something a common carrier to the center of jurisprudence, the Fifth Circuit may have done us all a service. BUT it does so by ignoring many of the important historical, social, and technological facts….

and by relying on the famously vague and hand-wavey “affected by a public interest” standard that courts used over a hundred years ago to try to update American law to the industrial revolution without actually developing the conceptual tools to do so

Courts can do better! Relying on a judgment about whether a business is “affected by the public interest” is just… not the way to go.

There is so much more one could say about the opinion and its novel and/or wrong takes on law, history, media policy, and … empirical reality. But the takeaway is that it's a very significant departure from the established interpretation of the 1A cases

We cannot know what its consequences will be. It might be, of course, that in a year, the Supreme Court rejects all these doctrinal “innovations.”

Whatever happens, though, the opinion is a very powerful example of how much, and how quickly, doctrinal understandings of what the law is can change when there is motivation to change them.

Which is a good reminder to all of us not to assume that our rights are written into law when the meaning of that law … can change like the tides of political opinion. THE END!

Edited to add: as both @daphnehk and @haroldfeld have helpfully pointed out, no one joined Judge Oldham on the common carrier part of the opinion. My error! But the Q still remains, what other courts/judges will make of Oldham's analysis...