An opinion that sparks this sort of response seems likely to be a target of lawyers and satirists:
On Sept. 16, the Fifth Circuit issued its opinion in NetChoice v. Paxton, upholding the controversial Texas law that limits the ability of large social media platforms to moderate content and also imposes disclosure and appeal requirements on them. The Fifth Circuit had previously stayed a district court injunction against the law, but the Supreme Court voted 5-4 to vacate the stay. The opinion opens up a stark circuit split with the Eleventh Circuit, which had ruled that a Florida law that also imposed content moderation restrictions on platforms violated the First Amendment. Unless the platforms get another stay pending rehearing en banc by the Fifth Circuit or review by the Supreme Court, the Texas law will go into effect, with potentially massive consequences for how the major social media companies moderate their platforms.
The initial reaction to the decision among policy experts and legal scholars has been, to put it mildly, harsh. It’s been called “legally bonkers,” a “troll to get SCOTUS to grant cert,” an “angrily incoherent First Amendment decision,” and “the single dumbest court ruling I’ve seen in a long, long time.” As someone who has argued for the constitutionality (and indeed desirability) of some government regulation of platform content moderation, I was hoping that the first judicial decision upholding such regulation would be a thoughtful and measured approach to what is indisputably a hard, even wicked, problem.
Unfortunately, the Fifth Circuit’s decision, written by Judge Andrew Oldham, is decidedly not that. Although not without its good points, it is largely a crude hack-and-slash job that misstates the facts and the law and ignores the proper role of an intermediate court, all in a sneering tone that pretends that those who disagree with it are either stupid or evil. It’s an extreme example of First Amendment absolutism: the insistence that the First Amendment has either nothing to do with content moderation or that it provides maximum constitutional protections to such practices. The opinion deserves to be swiftly overruled, either by the full Fifth Circuit or by the Supreme Court. [“The Fifth Circuit’s Social Media Decision: A Dangerous Example of First Amendment Absolutism,” Professor Alan Z. Rozenshtein, Lawfare]
Did the judge’s hair fall out upon reading the responses? Stay tuned.
