Why Are Texas Republicans Trampling on the First Amendment in the Name of ‘Free Speech’?

You don’t get to claim to support free speech or free-market capitalism while pushing garbage like this. 

Free speech has been under attack by a number of Republican Governors lately who feel conservatives have been unfairly censored by social media companies. One of them is Texas Governor Greg Abbott who, along with state Republican lawmakers, passed a bill last year that would allow the government to dictate content moderation practices to online companies.

Yes, you read that right. These guys are allegedly so distraught at the lack of respect for free speech on Big Tech platforms—a legitimate concern—that they decided to pass a law that actually violates the First Amendment. As I previously explained, the law “makes it illegal for platforms to remove users based on their political views, and it requires a complaint system to be in place.”

It is, of course, high-key unconstitutional for the government to mandate that private actors or companies host speech they disagree with. (Remember the Christian baker and that gay couple’s wedding cake?)

Naturally, Texas was promptly sued over this law. And in December, a federal judge agreed with the challenge, issuing an injunction that prevented the law from going into effect. The district court held that the law was so “constitutionally flawed it must be enjoined in its entirety.” 

Texas appealed that decision, bringing us to the most recent hearing in May. On Monday, the Fifth Circuit Court of Appeals—a three-judge panel—heard oral arguments on that appeal. It went…weirdly.

According to reporting from tech reporter Brian Fung, the judges were confused over the very basic tenants of the content they were to be ruling on. One judge confused an “interactive computer service” with an “internet provider” and also seemed to struggle with the fact that both Twitter and Facebook are websites. 

Um, yikes.

Another judge appeared shocked to find that the First Amendment existed online.

We often talk about age limitations needing to be in place for the presidency, but I’m starting to think they might be necessary for judges too. It is absolutely unfathomable to think we have people this removed from modern technology making such major decisions over all of our daily lives. 

No thanks.

How can anyone have faith in such a system?

Things got even stranger after the hearing. Two days after the oral arguments, the appeals court issued a 2-1 split order, basically granting Texas’ motion to lift the injunction. They did this without issuing a written opinion or weighing in on the merits of the actual court case.

So, they didn’t even examine the question of constitutionality in the matter, but still let a law (that is quite obviously unconstitutional) take effect on a whim. Now, the case itself will continue to proceed in the lower courts, but the state can begin implementing the law—a law that is going to create a giant economic and legal mess.

As one of the plaintiffs, Netchoice, said, “We’d ordinarily expect the Court to issue a written order and accompanying opinion—especially when there’s a noted dissent, and especially when the legal issues are as weighty as these.”

(Disclaimer: I work with Netchoice as a media consultant).

[The Texas law] is an assault on the First Amendment—and we remain confident the courts will strike it down as unconstitutional,” Netchoice Vice President and General Counsel Carl Szabo said of the latest development. “In the meantime, unfortunately, Americans—especially Texans—will be negatively impacted.”

Just how bad will it be when this law gets into motion? 

Mike Masnick of TechDirt lays it out nicely in a recent article. He writes, “First, even if there is a good and justifiable reason for moderating the content — say it’s spam or harassment or inciting violence — that really doesn’t matter. The user can simply claim that it’s because of their viewpoints — even those expressed elsewhere — and force the company to fight it out in court. This is every spammer’s dream. Spammers would love to be able to force websites to accept their spam. And this law basically says that if you remove spam, the spammer can take you to court.”

And there’s more.

Masnick goes on to explain that “the law seems deliberately designed to force as much frivolous litigation on these companies as possible. It says that even if one local court has rejected these lawsuits or blocked the Attorney General from enforcing the law, you can still sue in other districts. In other words, keep on forum shopping. Also, it has a nonmutual claim and issue preclusion, meaning that even if a court says that these claims are bogus, each new claim must be judged anew. Again, this seems uniquely designed to force these companies into court over and over and over again.”

In case you’ve been lucky enough to never encounter our court system, let me explain something. Our courts are already painfully slow. Even in the most serious of circumstances, like when a child is in danger, it can take months to get a court date or any resolution whatsoever. The fact that Texas Republicans intend to bog down the court system with a bunch of frivolous lawsuits because not enough people liked their tweets is asinine.

Fortunately, this is not yet a done deal, and there’s every reason to hope a different court (hopefully one with fewer Boomer judges) will stand up for the First Amendment and strike down this law. But this bizarre ruling will create chaos in the meantime—and Texas Republicans should have to answer for that.

Sorry, Republicans, but you don’t get to claim to support free speech or free-market capitalism while pushing garbage like this. 

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Hannah Cox
Hannah Coxhttp://based-politics.com
Hannah Cox is a libertarian-conservative writer and co-founder of BASEDPolitics. She's also the host of the BASEDPolitics podcast and an experienced political activist.