Two Commentaries on the Fifth Circuit’s Texas Social Media Legislation Choice

I am nonetheless attempting to totally digest the Netchoice v. Paxton opinions (I have been slammed with a number of issues the previous couple of weeks, together with an fascinating and sudden improvement which I hope to weblog about in some element subsequent month). However for now, I believed I might go alongside two commentaries from high students on the topic, one solely important from Prof. Genevieve Lakier (Chicago) and one which’s largely important from Prof. Alan Rozenshtein (Minnesota). This is the opening of Prof. Lakier’s (which is a Twitter thread):

There was plenty of dialogue concerning the opinion the Fifth Circuit launched final Friday upholding Texas’s new social media regulation. A lot of folks have criticized the choice for getting the regulation improper.

Certainly, the opinion engages in an unapologetic, dramatic, typically weird rereading of precedents we thought we knew. For First Modification attorneys—nicely, for me—studying it seems like getting into the the other way up. However why precisely?

On this thread, I spotlight just a few of the actually vital departures the opinion makes from established precedent. I concentrate on the non-discrimination provisions within the regulation as a result of there’s extra (far more!) than sufficient there for a thread.

And an excerpt from Prof. Rozenshtein’s:

As somebody who has argued for the constitutionality (and certainly desirability) of some authorities regulation of platform content material moderation, I hoped that the primary judicial choice upholding such regulation can be a considerate and measured strategy to what’s indisputably a tough, even depraved, downside.

Sadly, the Fifth Circuit’s choice, written by Choose Andrew Oldham, is decidedly not that. Though not with out its good factors, it’s largely a crude hack-and-slash job that misstates the info and the regulation and ignores the right position of an intermediate courtroom, all in a sneering tone that pretends that those that disagree with it are both silly or evil. It is an excessive instance of First Modification absolutism: the insistence that the First Modification has both nothing to do with content material moderation or that it offers most constitutional protections to such practices. The opinion deserves to be swiftly overruled, both by the total Fifth Circuit or by the Supreme Courtroom.

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