As I noted yesterday, I'm still trying to fully digest the Netchoice v. Paxton opinions, but I passed along two commentaries from top scholars on the subject, one entirely critical from Prof. Genevieve Lakier (Chicago) and one that's mostly critical from Prof. Alan Rozenshtein (Minnesota). I thought I'd also pass along are more positive commentary from Prof. Adam Candeub (Michigan State):
Last Friday in NetChoice v. Paxton, Judge Andy Oldham of the U.S. Court of Appeals wrote an opinion for the Fifth Circuit upholding H.B.20, Texas's law prohibiting social media platforms, such as Twitter and Facebook, from discriminating against users based on their viewpoints. The Texas law would require the internet platforms' content-moderation policies to employ viewpoint-neutral criterion, ending censorship of conservatives and dissenters from the internet.
Big Tech supporters on the left and libertarian right greeted the opinion with beating of breasts and gnashing of teeth. The Left worries that the platforms will be less able to stifle views it finds dangerous and undesirable. (Commenters on the Left have yet to square this view to their hostility to corporate First Amendment rights in Citizens United.) Libertarians decry the opinion as an intrusion on the internet platform's "editorial discretion" which they claim the First Amendment protects completely. Both sides smear the opinion as an act of judicial willfulness unmoored from precedent.
But Judge Oldham's opinion stands on firm ground. The opinion's critics argue that the First Amendment protects the act of exercising "editorial discretion": the right of platforms to control what content they transmit. But, critics forget that the First Amendment protects only expressive acts—a point made clear in the two Supreme Court case on which Big Tech (and Judge Oldham's critics) base all their critique: Miami Herald v. Tornillo and Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston.
