A panel of three federal appeals court judges on Monday seemed to struggle with basic tech concepts, and the result could signal an unexpected victory for conservative critics of the legal approach underpinning modern social media.
The judges presiding over the hearing in a New Orleans courtroom were weighing whether to clear the way for a Texas law that was designed to punish social media services for alleged anti-conservative bias.
At the urging of two Big Tech trade groups, a federal district court had previously paused the law, finding — as many courts have before — that government actions to force private actors to adopt a particular political view violate the Constitution’s First Amendment.
Texas then appealed its loss, leading to Monday’s hearing, during which one judge suggested that Twitter isn’t even a website and another wondered if phone companies have a First Amendment right to kick people off their services.
“Your clients are internet providers,” Judge Edith Jones told the lawyer for the plaintiffs, NetChoice and the Computer and Communications Industry Association. “They are not websites.”
The two trade groups that are suing represent Big Tech platforms such as Google, Meta and Twitter, which are not internet access providers the way that broadband companies such as Verizon or AT&T are.
Yet the confusion persisted. At one point, Judge Andrew Oldham suggested that if the tech platforms succeeded, it would allow phone companies to kick off users.
“Under your theory, could Verizon decide that they’re going to overhear every phone call … and when they hear speech they don’t like, they terminate the phone call?” Oldham said.
Telephone companies have for decades been designated as “common carriers,” meaning they are required by law to “carry” any and all phone content without discrimination. You can make a phone call to whomever you want, and the phone company can’t pick and choose on your behalf — and wiretap laws ordinarily (though not always) prevent telecom companies from listening in.
For a very brief time, internet service providers such as Comcast and Verizon were also considered common carriers. The Federal Communications Commission in 2015 adopted a rule classifying them as such, but it was short-lived. The commission then reversed that rule during the Trump administration, in 2017.
Oldham appeared to be sympathetic to Texas’ view that the platforms should also be treated as common carriers. Designating which services must serve all customers is complex and, as the 2015 and 2017 net neutrality fight highlighted, politically fraught. Historically, lawmakers and regulators have applied similar rules to telephone networks, electrical utilities and other businesses that may be subject to significant government regulation, have major market power, oversee vast infrastructure or hold themselves out equally to all comers.
By contrast, Congress explicitly created law, known as Section 230, allowing platforms to remove content without fear of lawsuits, and courts have repeatedly upheld companies’ rights to create and enforce terms of service that prohibit certain content and conduct. Tech and legal experts say treating platforms as common carriers would force companies to host the most vile speech.
Oldham also called it “extraordinary” that, under the current legal approach to social media companies, they could decide to ban liberal speech as well.
“Its new ownership … could just decide that we, the modern public square of Twitter … will have no pro-LGBT speech, period, full-stop, end-of-story?” Oldham said, seemingly gesturing to Elon Musk’s expected takeover of Twitter.
Oldham — who, like all the judges on the panel, was a Republican appointee — appeared to be echoing a view held by some conservatives about the Supreme Court’s description of social media in 2017 as sometimes amounting to “the modern public square.” Many on the right have suggested that the U.S. highest court endorsed a view that Americans have a right to access platforms like Twitter as a basic matter of free speech. But the phrase occured in a decision striking down government limits on access to social media, not company limits on users or content, and the Supreme Court has even more recently held that private actors get to make decisions over content even when they face far more government regulation than social media.
The judges in the Texas case seemingly resisted, or needed coaching on, the tech policy status quo when it came to Sec. 230.
Jones appeared to confuse internet service providers (broadband and wireless companies) with interactive computer services more than once. The latter is a legal term of art, used in Sec. 230, that refers to the category of companies that includes social media platforms such as Twitter and Facebook. Sec. 230 immunizes such companies from legal responsibility for most content that users post, explicitly allowing them to take down or leave up content as they see fit.
Conservatives have often blamed these moderation powers for what they say are major social media companies’ efforts to silence right-wing figures and speech, making the provision a frequent target of Republican ire. These threats have come even as judges from all political orientations, up to the Supreme Court, have largely found the services’ rights to decide what speech goes up on — or comes down from — social media platforms derive from the First Amendment, not Sec. 230.
Sec. 230 does, however, deal with the distinct but related issue of how platforms should be treated in a lawsuit over users’ speech. The judges at Monday’s hearing may need to contend with Sec. 230 if they want to uphold the Texas statute, which allows for the attorney general and users to sue when platforms “censor” users.
The judges’ skepticism of the platforms’ position and claims about tech policy law were unusual, but don’t necessarily signal a particular outcome. Probing questions are the point of hearings, and the judges also suggested some issues with Texas’ position. Jones in particular seemed to doubt the basis for the state’s claim that the social media services could be treated as common carriers.
If the panel does decide to overrule the lower court’s injunction and allow the law to proceed, however, the tech companies have appeal options or could eventually pursue a trial. An ultimate decision endorsing Texas law, though, could set the approach of the federal appeals court apart from those of other courts in the U.S. — a phenomenon known as a circuit split that makes it much more likely the Supreme Court will intervene.