OPINION | Conservative Fifth Circuit jurists took a sledgehammer to the First Amendment—using incoherent logic, incorrect law-reading, and fake history.
...suddenly, a large part of the conservative world began arguing that the First Amendment might no longer apply to companies.Just a few days ago, Florida asked the Supreme Court to review the 11th Circuit's ruling. And while they were getting that together, four months went by, and many people forgot that the 5th Circuit never gave its reasoning for trying to turn the Texas law back on.
There is a very limited set of exceptions to the First Amendment, and, traditionally speaking, if a law impacts speech, the courts are going to say it’s unconstitutional. In this case, the main issue was that these laws effectively compelled speech by not allowing websites to delete or otherwise moderate speech they felt was problematic.
While Oldham ignores those key Supreme Court cases, he does cite others, relying heavily on two cases where the Supreme Court allowed the state to compelowners to allow speakers on their property. These two cases are extremely limited in scope . But Oldham more or less treats them as “the Supreme Court said that it was okay to compel speech.” But to insist that social media sites are more like a mall than a newspaper is not just bizarre, it misreads the rulings in all of those cases.
Based on all of these mistakes, Oldham gets to pretend that the First Amendment does not apply to editorial discretion . He pretends that social media sites’ reputations are not tied up in what is posted on their sites . Oldham insists that Nazi and terrorist content on sites is merely a “hypothetical” problem, rather than something sites deal with every day . And he pretends the First Amendment can bind private companies.
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