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5th Circuit: Big Tech Censorship Isn’t Freedom

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Published on: September 18, 2022

Big Tech and some of their libertarian fellow travelers are freaking out over this sensible ruling by Judge Andy Oldham that Big Tech censorship isn’t protected by the First Amendment.

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” Judge Andrew S. Oldham of the U.S. Court of Appeals for the Fifth Circuit, which is known to be conservative, said in the court’s ruling. One member of the three-judge panel dissented from portions of the ruling.

The background here is that some states, including Florida and Texas, passed bills protecting the civil rights of people targeted by Big Tech censorship.

The Texas law in question here “regulates platforms with more than 50 million monthly active users… in enacting HB 20, the Texas legislature found that the Platforms “function as common carriers, are affected with a public interest, are central public forums for public debate, and have enjoyed governmental support in the United States.” It further found that “social media platforms with the largest number of users are common carriers by virtue of their market dominance.” And banned political censorship.

Big Tech responded by claiming that preventing it from discriminating against people over their political views was a violation of its First Amendment rights.

This is literally arguing that censorship is freedom. Way to make 1984 a reality.

I pointed out that the argument was dishonest nonsense because the same Big Tech monopolies and their lefty allies saying this were also vocally demanding net neutrality.

Big Tech already dismantled all the arguments it’s putting forward with Net Neutrality.

If a digital service picking and choosing its content is a First Amendment right, then why don’t cable companies have the same right to bar access to the harmful content on Twitter?

A trade association whose members include Twitter and Facebook insists they have a right to ban the President of the United States and any conservatives because that’s free speech, but that AT&T or Comcast don’t have the right to ban access to Twitter because of free speech.

If censorship is also free speech then that cuts both ways. Otherwise it’s free speech for me, but not for thee, which is exactly the argument that Big Tech’s lobbies and front groups are making.

And if the First Amendment mandates the right to deny services then coffee shops that stopped black people from buying there have the right to do so. And civil rights is unconstitutional.

Obviously, they don’t believe this is true.

Considering the growing role of government influence on Big Tech censorship, it’s really state action and a First Amendment violation. Furthermore a coalition of Big Tech monopolies assembling a trust to censor and suppress the political views of half the country in order to allow its leftist allies total power while helping them win elections is an even bigger crisis.

The sort of thing lefties would call, “an attack on democracy”.

Judge Oldham’s ruling totally defenestrated the entire Censorship is Freedom argument.

”But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech,” he writes.

“Section 7 does not chill speech; if anything, it chills censorship,” he points out.

“Section 7 does not regulate the Platforms’ speech at all; it protects other people’s speech and regulates the Platforms’ conduct.”

“Tellingly, the Platforms have pointed to no case applying the overbreadth doctrine to protect censorship rather than speech.”

Unsurprisingly, there isn’t one.

“Additionally, unlike individual citizens potentially subject to criminal sanctions—the usual beneficiaries of overbreadth rulings—the entities subject to HB 20 are large, well-heeled corporations that have hired an armada of attorneys from some of the best law firms in the world to protect their censorship rights.”

“The Platforms contend, Section 7 somehow burdens their right to speak. How so, you might wonder? Section 7 does nothing to prohibit the Platforms from saying whatever they want to say in whatever way they want to say it. Well, the Platforms contend, when a user says something using one of the Platforms, the act of hosting (or rejecting) that speech is the Platforms’ own protected speech. Thus, the Platforms contend, Supreme Court doctrine affords them a sort of constitutional privilege to eliminate speech that offends the Platforms’ censors. We reject the Platforms’ efforts to reframe their censorship as speech. It is undisputed that the Platforms want to eliminate speech—not promote or protect it. And no amount of doctrinal gymnastics can turn the First Amendment’s protections for free speech into protections for free censoring.”

You can tell that Judge Oldham’s ruling is good because all the right folks are squealing like stuck pigs.

Article posted with permission from Daniel Greenfield

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