Opinion Absurd Texas social media law shows how GOP debases the courts


HR King
May 29, 2001
Conservatives’ long and successful effort to take over the federal courts was about realizing big goals: overturning Roe v. Wade, expanding gun rights, undermining civil rights protections, eliminating campaign finance regulations, weakening the government’s ability to solve problems, and more.
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But that campaign also sought to achieve a less well-known but no less substantial aim: creating a situation in which any cockamamie Republican idea will have a friendly hearing in the courts.
If enough right-wing judges view constitutional principles as secondary to the rule that whatever Republicans want to do is A-OK, they can pretty much run hog-wild. It makes the courts a forum for the GOP to pump up the culture war and slay its enemies, less a place where fundamental constitutional questions are decided than one more arena of partisan posturing.


Case in point: a ruling on Thursday from a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit. It reversed a stay from a lower court, allowing a positively bonkers Texas law passed last year to go into effect while the case proceeds, likely all the way to the Supreme Court.
The topic is conservative delusions of victimization by social media, and whether the government has the right to tell companies such as Facebook and Twitter what they have to carry on their platforms.
There are lots of reasons to be disturbed by social media’s effects on politics and society. The undermining of democracy, the spread of misinformation, the exacerbation of tribalism, the enabling of harassment, the mental health effects on kids, and much more.

But the single dumbest reason to be worried about social media is the ludicrous fantasy that the companies are engaged in a conspiracy to silence conservatives. So, of course, that’s what Republicans are focused on, and what Texas actually passed a law to stop.

The law prevents social media platforms including Twitter, Facebook and YouTube from banning any user based on their “viewpoints.” Users can sue if their accounts are removed, as accounts often are, and the state attorney general can file an action. While the companies would be allowed to remove content in a few categories, including explicit threats and pornography, they would be forbidden from having policies against, say, Nazism or medical disinformation.
Whatever you think of social media companies, this is about as obvious a violation of the First Amendment as you could conjure up. While many people misunderstand the First Amendment to mean “I can say what I want and nobody is allowed to criticize me for it,” in fact, it forbids the government from telling you what you can say, or forcing you to say something you don’t want to.

The latter is precisely what the state of Texas is doing with this law. It says to these platforms, “You’ve decided to remove certain users because they violated your terms of service, but the government is overruling you, and you must keep publishing them.”

Because the law is so obviously unconstitutional, a federal district court blocked it. The state appealed, at which point it got itself a friendly three-judge panel of the Fifth Circuit, regarded as the most conservative of the federal appeals courts. But no judge with even a passing familiarity with the Constitution should have done what that panel did: eliminate the stay and allow the law to take effect.
As Ian Millhiser observes at Vox, by making it almost impossible for the platforms to moderate content, this law “would effectively turn every single major social media platform into 4chan — a cesspool of racial slurs, misogyny, and targeted harassment that the platforms would be powerless to control.”

Is that what Republicans actually want? Probably not.
No, what they want is the fight itself. Sure, they’d like it if former president Donald Trump were back on Twitter and Facebook. (They know his “Truth Social” is a joke.) But that’s not what they’re really after.

The best way to view all this is as an extended performance in multiple acts. First, conservatives rage at Twitter and Facebook for banning Trump after repeated violations of the sites’ terms of service. They spread dark conspiracies about tech companies silencing brave right-wing truth-tellers. Then they pass an absurdly unconstitutional state law, which is put on hold by a judge, then upheld by an appeals court, then finds its way to the Supreme Court, where it will get more attention than ever.

Even this Supreme Court with its conservative supermajority would be likely to strike down the Texas law. While Justice Clarence Thomas has expressed interest in seeing social media platforms regulated as “common carriers” like phone companies, which aren’t allowed to say who can and can’t use their service, he doesn’t appear to have allies on the court for that view.
But that doesn’t really matter. This isn’t a case in which conservatives have well-thought-out opinions about the policy questions involved. You can see it in the spectacularly shallow way Republicans in Congress talk about regulating tech companies, which makes clear that they have almost no interest in constructing a new regulatory regime.
For all the areas in which conservatives are achieving big goals, in this case all they want is to go on Fox News and shout that Twitter is oppressing them. Winning is not the point. As long as they’re fighting and complaining, they’re getting their way.