What will be the fate of free speech in the United States? The answer is coming soon from the U.S. Court of Appeals for the Fifth Circuit in Netchoice v. Paxton.
Last year, Texas protected free speech from Big Tech censorship by passing a statute finding that the largest social media platforms are “common carriers” and barring them from discriminating against speech on grounds of viewpoint. Common carriers are publicly accessible conduits for the goods or communications of others. Traditionally, because they are open to the public, serve a public function, enjoy legal privileges or have market dominance, they can be regulated to bar them from discriminating.
Rather than comply with the Texas law, the social media platforms secured a preliminary injunction against its enforcement. A district court judge granted the injunction, saying the anti-discrimination regulation violated the social media platform’s First Amendment rights.
But the district court opinion is not exactly dispositive. Although the Texas statute expressly found that the affected companies were common carriers, the district court simply declared that the statute’s “pronouncement that social media companies are common carriers…does not impact this Court’s legal analysis.”
That’s astonishing. It would be one thing for the court to examine the question and hold that a state lacks the power to determine common carrier status. Although such a holding would be bizarrely incorrect, it would at least be a reasoned decision. It is quite another thing, however, brazenly to declare that the legislature’s determination has no relevance at all.
The common carrier question is crucial, because it is the foundation for understanding the free speech problem. Communications companies that serve as carriers or conduits have long had a duty to carry the speech of others without discriminating. That duty does not abridge the companies’ own speech rights—it merely regulates them in their role as carriers or conduits for the speech of others.