A panel of judges in the Fifth Circuit Court of Appeals has decided that “editorial discretion” is no longer a protected right under the First Amendment—because the judges are upset that Donald Trump was removed from Twitter.

I know that sounds impossible, but it’s exactly what happened.

“[T]he Supreme Court’s cases do not carve out ‘editorial discretion’ as a special category of First-Amendment-protected expression,” the court said, opening up a pandora’s box of potential mischief.

In the most frustrating ways, this ruling is completely wrong. Just to understand any part of why it’s wrong, we could explore multiple layers of wrongness before even getting to why the final pronouncements in this ruling are wrong. It was difficult writing this article. For each paragraph, I felt compelled to write an entire article explaining the underlying wrongness. But, we have limited space.

SO, SO VERY Wrong

An astoundingly incomplete list of problems with the majority opinion include: it’s wrong about how the First Amendment works and the extent of what it protects; it gets so twisted up in its own made-up logic that it pretends the First Amendment limits private actors, rather than governments; it is so confused by how Section 230 of the Communications Decency Act actually works that the judge rewrites the law to say something it does not; bizarrely, it pretends that a law the court itself misrepresents (Section 230) is somehow relevant to the interpretation of the Constitution (which is not how anything works); it adds an element to the law it is analyzing that literally does not exist; it wholly ignores vital Supreme Court precedents; it pretends the plaintiffs waived a key argument they explicitly did not; it invents elements of common carrier law that do not exist; and it ignores the dormant commerce clause of the Constitution, which limits states’ ability to regulate interstate commerce.

And that’s not even getting into the procedural problems of the case, such as the way it completely misunderstands how content moderation works (for example, the judge repeatedly insists that concerns about Nazis and terrorists on social media are entirely “hypothetical” and mocks the plaintiffs for their “obsession” with them). There are also many historical inaccuracies throughout the opinion.

The ruling reads like a social media post that isn’t informed. Actual lawyers would laugh at it.

The cynical will point to things like the Supreme Court’s decision in Dobbs (which overturned Roe v. Wade) and note that we’ve entered an era of Calvinball jurisprudence—in which precedents are no longer an impediment to whatever endgame Federalist Society judges want. (The beloved comic strip Calvin and Hobbes introduced us to the concept of “Calvinball”—a sport in which the participants make up the rules as they go, never using the same rules twice.)

This decision is absurd in some ways. Some parts of the conservative world have spent 50 years arguing for Roe. When it comes to the upending of the First Amendment, the opposite is true.

Indeed, the same forces that worked to overturn Roe spent nearly the same amount of time working to strengthen and expand judicial recognition of the First Amendment rights of companies—from allowing a baker to choose not to decorate a cake, to allowing companies to cite the First Amendment as a reason not to provide contraception as part of a health plan, and deciding that the First Amendment did not allow Congress to bar certain types of expenditures in support of political candidates.

No matter what your feelings are about Masterpiece Cakeshop or Hobby Lobby, Citizens United was influenced by conservative arguments. All three cases relied heavily upon the principle that the First Amendment prohibited restrictions on corporate expression. This included the right not to be forced to endorse or enable certain forms of expression.

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As First Amendment lawyer Ken White noted back in the comparatively innocent days of November 2016, regarding Donald Trump’s call to open up our libel laws, “You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn [key First Amendment precedents.]”

In the aftermath of the Jan. 6 attack at the Capitol, Twitter banned Trump’s former president.

The conservative world suddenly began to argue that the First Amendment may not apply to businesses.

This formerly bedrock principle among conservatives—that the First Amendment rights of corporations were sacrosanct—got tossed out the window. Many states with Republican-majority legislatures quickly proposed laws restricting the freedom of social media sites to moderate. Florida was the first to get its bill signed into law, followed rapidly by Texas, where HB 20 sought to bar “censorship” of viewpoints by large social media platforms.

Trade groups representing many internet businesses challenged both laws in court. District court judges ruled that the laws were clearly unconstitutional. These rulings were appealed by the states, and both cases were heard in appeals courts this spring.

It would take another entire article to explain the procedural wackiness that followed, but the very abbreviated version is that while the 11th Circuit considered the appeal of Florida’s law, the 5th Circuit panel heard the appeal of Texas’s law, and just days later—without any explanation, but promising one at a later date—said that the lower court was not just wrong, but that Texas’ law should go into effect immediately. This would normally be followed by an explanation and a procedural stop, which allows for normal appeals. The Supreme Court was quickly notified and requested to intervene. While waiting for that to happen, the 11th Circuit wrote a long and detailed explanation again pointing out how Florida’s law was still mostly unconstitutional. Then the Supreme Court put the 5th Circuit’s ruling on hold (without explanation, but likely due to the procedural oddity of it all).

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A large portion of the conservative world suddenly began to argue that the First Amendment may not apply to companies.

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Florida requested the Supreme Court to reconsider the ruling of the 11th Circuit just a few days back. While they were working together, it took four months for many to forget that the 5th Circuit had never explained why it wanted to reverse the Texas law.

That changed last week with the release of this opinion, reinstating Texas’s law and disagreeing with the 11th Circuit.

A TALE FROM TWO FEDERALISTS SOCIIETY JUDGES

It’s worth noting the similarities between Judge Kevin Newsom, who wrote the 11th Circuit decision finding Florida’s law unconstitutional, and Judge Andy Oldham, who wrote the 5th Circuit decision finding Texas’s law perfectly constitutional. Both are in their 40s and attended Harvard Law. They also clerked at The Supreme Court. Donald Trump appointed both of them. Both were members the Federalist Society. Both were lawyers for state governments. Oldham was the deputy solicitor general of Texas and General Counsel to Governor. Gregg Abbott was the solicitor general of Alabama.

Yet Newsom presented a pretty typical ruling that highlighted the relevant Supreme Court precedents and the nature of the First Amendment—and made it quite clear that Florida’s law sought to force companies to give up their editorial discretion, and thus was unconstitutional.

This is how it works in normal First Amendment cases.

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There is a very limited set of exceptions to the First Amendment, and, traditionally speaking, if a law impacts speech, the courts are going to say it’s unconstitutional. The issue in this case was that these laws effectively made speech compulsory by preventing websites from moderating or deleting speech they considered to be objectionable.

There are many, many Supreme Court cases that have made it clear that compelled speech is unconstitutional, editorial discretion is protected by the First Amendment, and the First Amendment’s “association” rights include the right not to associate with speech.

There are very few exceptions. All of these cases were (until the ruling) very narrow and fact specific cases at the time. They have generally been reduced to virtually nothing since then. They have been very reluctant to expand any of these exceptions, limiting them to cases that were narrowly argued in decades past.

Judge Oldham was a rogue here.

First he went on, at length (oddly), about “the original public meaning” of the First Amendment, waxing poetically about Blackstone’s Commentaries (William Blackstone, an English jurist, wrote those before the United States, let alone its Constitution, existed), which suggests that the concept of free speech is limited solely to prohibitions on prior restraint (the government saying “you can’t publish that”) and not to any of the other rights we’ve long associated with the First Amendment—including editorial discretion, rights of association, rights of anonymity, and much, much more.

Legal experts did not find this outlandish.

Oldham even chides the plaintiffs for failing to discuss this “original understanding” of the First Amendment and instead merely relying on Supreme Court precedent. As an acknowledgement that Supreme Court precedent is meaningless in a post-Dobbs world—where Supreme Court justices magically become expert legal historians—perhaps that makes sense. In the normal world, all such cases are based on Supreme Court precedent. Here, Judge Oldham completely ignores Reno v. ACLU, which explicitly lays out why the First Amendment applies on the internet, and that you can’t treat the internet like broadcast or telco systems that involve scarcity of services. Indeed, he repeatedly cites other cases that focus on compelled speech within scarce systems—including telecom and broadcast TV.

He brushes off the Supreme Court’s ruling in Manhattan Community Access Corp. v. Halleck (a case the 11th Circuit properly relied on to invalidate Florida’s law) in a footnote, saying it was about “public forums” rather than private ones. But that’s exactly backwards. Halleck, a 2019 case with the majority decision written by Justice Brett Kavanaugh, explicitly says that a “private entity may thus exercise editorial discretion over the speech and speakers in the forum.”

Oldham not only insists that it doesn’t say this, he also insists (again contrary to that very sentence) that the Supreme Court does not recognize a right to “editorial discretion.” Instead, Oldham seems to think that if he just calls editorial discretion “censorship” at every turn, he can insist it’s not covered by the First Amendment because, in his words, if Texas’s law “chills anything, it chills censorship.”

Photo Illustrations by Luis G. Rendon/The Daily Beast/Getty

Remember, however, that the First Amendment doesn’t restrict government censorship (which Oldham appears to not). By definition, it cannot restrict a private company’s editorial choices even if you call them censorship. Oldham ignores this, and insists it’s fine for the government to restrict editorial rights, so long as it calls those editorial rights “censorship.”

Oldham does not mention the key Supreme Court cases. However, he does reference other cases. He cites heavily from two cases where the Supreme Court allowed state to compel property owner (in one case, a shopping center and in the other, a law college) to allow speakers to their property. These cases are very limited in scope, and later rulings have further restricted those rulings. But Oldham more or less treats them as “the Supreme Court said that it was okay to compel speech there, therefore Texas can compel speech here.” But to insist that social media sites (which are in the business of publishing) are more like a mall than a newspaper is not just bizarre, it misreads the rulings in all of those cases.

Indeed, Oldham’s ruling runs into the trope-like problems normally associated with non-lawyers arguing for speech restrictions: insisting that because of one narrow exception to the First Amendment, any exception is possible.

Oldham’s bizarre First Amendment analysis bends over backwards to insist that social media sites are nothing like newspapers, arguing that because newspapers handle editorial discretion ex ante (before publication), they are somehow protected against government compelled speech. Social media moderators do their moderation ex-post (after content has been posted), so it loses the First Amendment rights to moderate.

This is again a mistake. First of all, the majority of large social media sites do some ex ante moderation. This includes using AI and filters to remove objectionable content and stop it from being published. But more importantly, nothing in Texas’s HB 20 law says it doesn’t apply to you if you first review all the content before it goes on the site. It still applies. Oldham seems to believe that this magical distinction is in the law.

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SECTION 230 DOESNT SAY THIS

Oldham misunderstands Section 230 in a manner that is very similar to internet trolls. He notes that, because the law says that you cannot hold interactive computer services liable as if they were publishers, that means they have declared themselves not to be publishers, and therefore cannot avail themselves of the First Amendment’s protections for publishers.

This is a legalese version of the nonsense myth that Section 230 requires websites to declare themselves a “publisher” or a “platform.” The law does no such thing. Oldham claims it does.

Even worse, to make all this work, Oldham literally rewrites Section 230 on the fly, claiming (falsely) that it “only considers the removal of limited categories of content, like obscene, excessively violent, and similarly objectionable expression.”

This is wrong in three separate ways (actually, more, but I’ll just cover the most egregious three).

He forgets that Section 230 protects removals based upon what the provider considers objectionable and not the state. It makes it clear that it is the site’s decision to decide what content is acceptable. Second, he limits the full list of content that is described (which goes way beyond obscene and excessively violent) and leaves out that it makes clear these removals are protected even if such content may be “constitutionally protected.” And third, most egregiously, he rewrites the law to say “similarly objectionable” (suggesting it must be similar to other items in the list) when the law actually says “otherwise objectionable.” The combination of “the provider considers” and “otherwise objectionable” has always made it clear that the sites (not the government) have the leeway to decide.

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This is a legalese version of the nonsense myth that Section 230 requires websites to declare themselves a ‘publisher’ or a ‘platform.’ The law does no such thing.

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Oldham needed to literally rewrite law to pretend otherwise. And I’m pretty sure that the judicial branch is not supposed to rewrite laws to pretend they say something they don’t.

All of these and many more are based on Oldham’s mistakes. Oldham can pretend that the First Amendment doesn’t apply to editorial freedom (it does). He pretends that social media sites’ reputations are not tied up in what is posted on their sites (they are, as made clear by Bob Iger’s recent admission that Disney decided to not buy Twitter because of all the “hate speech” which would hurt Disney’s brand). Oldham insists that Nazi and terrorist content on sites is merely a “hypothetical” problem, rather than something sites deal with every day (again, belied by both reality and Iger’s comments). He even pretends that the First Amendment can be binding for private companies.

It goes against a century’s worth of First Amendment precedent. It goes against decades’ worth of (mainly conservative) jurisprudence regarding the First Amendment rights of corporations. It selectively revises inconvenient laws.

But hey, it might let Texas force Twitter to return Donald Trump’s account, so who cares about all that?

In all likelihood, the Supreme Court will need to review this ruling (perhaps in combination with Florida’s appeal). Justices Clarence Thomas and Samuel Alito have been making noise about how they view content moderation similarly (even if this means both justices need to completely ignore multiple previous opinions they’ve signed onto). It’s unclear how the rest of the court will rule.

Justice Kavanaugh is likely the key vote, as his ruling in Halleck is so clearly on point, and so recent, he’d need to reverse nearly everything he wrote just a few years ago to embrace this 5th Circuit interpretation.

This would have been impossible a few years back. However, a Federalist Society conservative judge in the 5th Circuit decided that private companies do not have editorial control and that the state could compel them to post content that they don’t want to associate with.

It’s Calvinball.

The post Judges Are Playing ‘Calvinball’ With the Constitution Because They’re Mad Trump Was Banned From Twitter first appeared on Raw News.