Amici Briefs Target Common Carrier Argument in Texas Social Media Case

Platforms aren’t common carriers, commenters argued last week in amici briefs before the 5th U.S. Circuit Court of Appeals, siding with the tech industry in a lawsuit against Texas’ social media law in case 21-51178 (see 2204080019). Carriers such as phone utilities are "fundamentally different" from platforms “because they facilitate private communications, while platforms exist for the purpose of publishing users’ speech,” wrote Chris Cox, a former member of Congress from California (R) who co-wrote Section 230 (see 2009020064): There’s no reason to believe telecoms endorse or are even aware of conversations they carry, but platforms can’t avoid being linked to the content they publish, he said. Section 230’s liability shield doesn’t remove a platform’s First Amendment right to choose the content of its own message, he said. By trying to stop censoring of conservative views, Texas “adopted a progressive legal theory to impose its own form of internet censorship,” wrote the Cato Institute: The state’s arguments are “fundamentally at odds with the core First Amendment values of a free speech marketplace.” Social media platforms aren’t common carriers but do have a right to editorial discretion, it said. The First Amendment bars the government from “imposing its preferred editorial viewpoint, even a notionally neutral one, on private publishers,” Reporters Committee for Freedom of the Press argued. The new law would allow Texas to impose editorial judgment “not only on the new forms of digital media it targets now, but also on traditional news publishers.” If allowed, the Texas law “will impinge on the critical statutory and constitutional rights all Internet platforms and speakers depend on,” said the Copia Institute, think tank arm of Techdirt publisher Floor64. “Rather than advancing online expression, this law will only suppress it, both through its own direct terms and by opening the door to similar legislation from other states to finish crushing what online platforms and expression are left.”