A Chink in Big Tech's Armor
Late last week, the 5th Circuit Court of Appeals proved a common sense but rarely actionable premise: the Big Tech companies, despite their claims to the contrary, do not have a divine right to rule in America. The laws — and the democratically elected lawmakers who write them – get first consideration.
Big Tech has run straight into a Texas-shaped brick wall in the form of a law passed by the state legislature last year aimed at preventing social media censorship of users for their viewpoints. The 5th Circuit hasn’t made a final ruling on the merits of the law, but has allowed the law to go into effect while the legal process moves forward.
The Texas’ law, HB 20, reaffirms a basic American legal principle. While Big Tech foams and froths about how they are “private businesses” who get to do “whatever they want under the First Amendment,” the reality of our laws is that some companies, given their scale and the role they play in facilitating access to speech and commerce, cannot. Phone companies, airlines, restaurants, schools, and hotels, among other types of business, are legally required to treat all people equally whether they are white or black, Christian or Muslim, Democrat or Republican.
Big Tech, of course, huffily declares the opposite. In fact, in front of the 5th Circuit, NetChoice, Big Tech’s trade association, argued that their member companies could, in fact, ban all LGBTQ speech if they so choose. Overt discrimination against their users, they claim, is central to the First Amendment protected speech of the companies.
Rather than wait for the 5th Circuit to decide this case, however, the tech platforms have made an “emergency application” to Justice Samuel Alito at the Supreme Court. These type of applications, part of the Court’s so-called “shadow docket,” are usually reserved for the most dramatic of situations, such as stays of execution.
In justifying such an extraordinary action, the platforms claim a parade of exaggerated horribles if the Texas law is allowed to take effect: They will be forced to change “all of our systems” to comply, and that they’ll lose business after advertisers pull out due to the objectionable conduct the platforms will be forced to host. To that point, they falsely contend that the Texas law would require platforms to carry and transmit unlawful speech, pornography, spam, and material harmful to children.
The Texas law supports none of these claims. Rather, the law only regulates for conduct regarding “viewpoint,” not content. Under the law, the platforms are in fact free to censor nudity, obscenity, harassing, and hateful conduct. Rather, how and what they censor must not favor one political party or ideological position over the other.
The platforms are arguing what they always do: We’re special, so the laws that apply to other companies of a similar nature do not apply to us. But the 5th Circuit wasn’t buying it. The judges attacked the claim that Big Tech companies are not the public square – noting that the tech companies have claimed the mantle in testimony before Congress, and that the Supreme Court has also agreed with the characterization.
The 5th Circuit also zeroed in on a key legal strategy that Big Tech has been using for years – taking advantage of loose legal definitions to claim legal protection in one arena, before shifting their shape to claim different legal protections in another. This led Judge Andy Oldham to assert that the tech companies wanted to have their cake and eat it, too.
For example, the tech companies have argued in countless cases that their censorship and “content-moderation” is protected by Section 230(c)(1). The all-important Section 230 immunity – which the primary content of newspapers, broadcasters, and virtually all other media companies do not enjoy – frees the platforms from responsibility for unlawful statements made by their own users.
But Section 230(c)(1) only protects against speech that, in the words of the statute, are made “by another.” An aggressive, 30-year litigation strategy by the Big Tech platforms has legally distorted the meaning of the statute to conflate the platforms’ own censorship and content-moderation with the speech “by another.”
Yet now, before the 5th Circuit and the Supreme Court, the platforms argue the opposite. They now claim that content moderation and censorship isn’t speech of the users — it is their own speech. Not only is it their own speech, but it is their vital editorial discretion that the First Amendment protects with the greatest force.
But the 5th Circuit was in no mood to let the world’s biggest corporations play fast and loose with the legal standards that all other businesses manage to follow. Increasingly, neither are state and federal legislators. While the 5th Circuit has yet to rule, the chinks in Big Tech’s oligarch armor are beginning to show.
Adam Candeub is a Professor of Law at Michigan State University who served as expert witness for the State of Texas in the internet platform's suit challenging HB 20. He is also a Senior Fellow at the Center for Renewing America. Rachel Bovard is the senior director of policy at the Conservative Partnership Institute and the senior tech columnist for The Federalist.
