Background

At issue in NetChoice, LLC v. Paxton, No. 21-51178 (5th Cir. 2022) was the constitutionality of Texas HB 20. Section 7 of HB 20 provides that:

A social media platform may not censor a user, a user's expression, or a user's ability to receive the expression of another person based on:

(1) the viewpoint of the user or another person;

(2) the viewpoint represented in the user's expression or another person's expression; or

(3) a user's geographic location in this state or any part of this state.

Trade associations representing companies such as Facebook and Twitter that are covered under HB 20 (the “Platforms”) contended that section 7 of HB 20 is facially unconstitutional.

‍

Decision

The majority of the United States District Court for the Western District of Texas ruled that Section 7 of HB 20 is not unconstitutional. Portions of the majority’s lengthy decision are discussed in detail below. 

‍

The First Amendment overbreadth doctrine is not applicable

The majority of the Court explained that one of the Platforms’ arguments for the unconstitutionality of section 7 of HB 20 was based on the First Amendment overbreadth doctrine. The majority set out that the First Amendment overbreadth doctrine provides that a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep. Overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression and the Supreme Court has only applied it where there is a substantial risk that the challenged law will chill protected speech or association (at 10-11).

The majority explained that the overbreadth doctrine does not apply to section 7 of HB 20 for the following reasons (at 11-14):

1. The primary concern of the overbreadth doctrine is to avoid chilling speech. However, section 7 does not chill speech; instead, it chills censorship. HB 20's prohibitions on censorship will cultivate rather than stifle the marketplace of ideas that justifies the overbreadth doctrine in the first place.
2. Overbreadth adjudication is meant to protect third parties who cannot undertake the considerable burden of as-applied litigation and whose speech is therefore likely to be chilled by an overbroad law. This rationale for overbreadth adjudication is inapplicable in the case of “well-heeled corporations that have hired an armada of attorneys from some of the best law firms in the world to protect their censorship rights.”
3. The Platforms principally argue against HB 20 by speculating about the most extreme hypothetical applications of the law including cases of “terrorists” and “Nazis.”

Therefore, the majority rejected the Platforms’ reliance on the overbreadth doctrine.

‍

Content moderation is not “speech”

The majority of the Court explained that the Platforms argued that section 7 of HB 20 burdens the Platforms’ right to speak despite the fact that section 7 does not prohibit the Platforms from saying whatever they want. The Platforms contended that when a user says something using one of the Platforms, the act of hosting (or rejecting) that speech is the Platforms' own protected speech, and therefore, the Platforms have a constitutional privilege to eliminate speech that offends the Platforms' censors.

The majority rejected this argument and cast it as the Platforms' efforts to “reframe their censorship as speech.” The Court explained that “no amount of doctrinal gymnastics can turn the First Amendment's protections for free speech into protections for free censoring” (at 19). A speech host must make one of two showings to mount a First Amendment challenge. It must show that the challenged law either: (a) compels the host to speak; or, (b) restricts the host's own speech. The majority of the Court held that the Platforms cannot make either showing (at 26).

Therefore, the majority rejected the Platforms’ argument that section 7 of HB 20 burdens the Platforms’ right to speech.

‍

The Platforms do not in engage in First Amendment protected “editorial discretion”

The Platforms argued that section 7 of HB 20 interferes with the Platforms’ speech by infringing on the Platforms’ right to exercise editorial discretion. The majority of the Court noted that this argument relies on two premises: (1) that "editorial discretion" is a separate, freestanding category of First-Amendment-protected expression; and, (2) that the Platforms' censorship efforts constitute "editorial discretion" (at 33).

The Court held that even if editorial discretion was a separate, freestanding category of First-Amendment-protected expression (which it did not find), the Platforms do not engage in editorial discretion as potentially protected by the First Amendment. First, entities that exercise editorial discretion accept reputational and legal responsibility for the content that it edits. Second, editorial discretion involves the "selection and presentation" of content before that content is hosted, published, or disseminated. The Court held that even if "editorial discretion" is a protected legal category, the Platforms’ content arrangement and ex post censorship would not qualify as editorial discretion (at 34-37).

Therefore, the Court held that the Platforms’ activities are not “editorial discretion” protected under the First Amendment.

‍

Conclusion

The majority of the Court rejected what it described as “the Platforms' attempt to extract a freewheeling censorship right from the Constitution's free speech guarantee.” The majority ruled that Texas HB 20 is constitutional because it neither compels nor obstructs the Platforms' own speech in any way (at 89).

‍

‍

¹ If you read this case summary and think that Alexsei may just have completely misunderstood the decision because it makes no sense, please note that the majority’s decision in Netchoice has been described by commentators as “fractally wrong”—made up of so many layers of wrongness that, in order to fully comprehend its significance, “you must understand the historical wrongness before the legal wrongness, before you can get to the technical wrongness.”

See: The Atlanitic, quoting Techdirt founder Mike Masnick: https://www.theatlantic.com/ideas/archive/2022/09/netchoice-paxton-first-amendment-social-media-content-moderation/671574/

² As noted by the United States District Court for the Western District of Texas at 111, “The Supreme Court will, as always, have the final word.” Watch for this case on appeal.