About a year ago, an especially right-wing panel of the far-right United States Court of Appeals for the Fifth Circuit held that Texas’s state government may effectively seize control of content moderation on social media websites such as Twitter, YouTube, and Facebook.
The Fifth Circuit’s opinion in NetChoice v. Paxton upheld an unconstitutional law that requires social media companies to publish content produced by their users that they do not wish to publish, but that the government of Texas insists that they must publish. That potentially includes content by Nazis, Ku Klux Klansmen, and other individuals calling for the outright extermination of minority groups.
Meanwhile, earlier this month the same Fifth Circuit handed down a decision that effectively prohibits the Biden administration from asking social media companies to pull down or otherwise moderate content. According to the Justice Department, the federal government often asks these platforms to remove content that seeks to recruit terrorists, that was produced by America’s foreign adversaries, or that spreads disinformation that could harm public health.
Again, the Fifth Circuit’s more recent decision, which is known as Murthy v. Missouri, would devastate a Democratic administration’s ability to ask media companies to voluntarily remove content. Meanwhile, the NetChoice decision holds that Texas’s Republican government may compel those same companies to adopt a government-mandated editorial policy.
These two decisions obviously cannot be reconciled, unless you believe that the First Amendment applies differently to Democrats and Republicans. And the Supreme Court has already signaled, albeit in a 5-4 decision, that a majority of the justices believe that the Fifth Circuit has gone off the rails. Soon after the Fifth Circuit first signaled that it would uphold Texas’s law, the Supreme Court stepped in with a brief order temporarily putting the law on ice.
Yet, while the Fifth…
Read the full article here