The Fifth Circuit disagreed. Writing for the panel, Judge Andrew Oldham, a Trump appointee, upheld the law. For Oldham, “moderation” is little more than censorship. Of course, the First Amendment “protects every person’s right to ‘the freedom of speech,’ ” Oldham writes. “But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.” The Texas law, he continues, “does not chill speech; if anything, it chills censorship.”
To a number of legal scholars, regulators and other experts, this was nonsense. Under the Fifth Circuit’s ruling, social media companies and other media organizations no longer have a First Amendment right to their own editorial policies.
That’s why, when the U.S. Circuit Court of Appeals for the 11th Circuit heard a similar case concerning Florida’s attempt to regulate social media companies, it ruled in favor of the plaintiffs, in a unanimous rejection of the Florida law. “We hold that it is substantially likely that social-media companies — even the biggest ones — are ‘private actors’ whose rights the First Amendment protects” and that their “so-called ‘content-moderation’ decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative.”
It should be said that this was a panel of Republican appointees, including one named by Trump. This week, in fact, a different panel of judges on the 11th Circuit — including two Trump appointees — set aside key parts of Cannon’s order, freeing the Justice Department to resume its use of classified documents in its investigation of the former president.
Which is to say that not every Trump appointee is a partisan ideologue, working in his favor. But there are enough Judge Cannons in the mix to ensure that the right (or perhaps I should say wrong) judge at the right time can wreak havoc on the rule of law. We’re seeing it in Florida, we’re seeing it in Texas and we will continue to see it until something is done to lessen the influence of Trump’s appointees.
Thankfully, there is a solution, and it only takes a simple vote of Congress. Expand and reorganize the federal court system.