CAN ONLINE CENSORSHIP BE BANNED? - Looking at the NetChoice Cases and the First Amendment

Deplatforming is becoming a big issue, with Nick Rekieta kicked off Twitter and YouTube (now thankfully restored) and Nate the Lawyer pursuing legal action against the would-be censorship czar, Christopher Bouzy. Two cases decided this year, NetChoice v. Moody and Netchoice v. Paxton, are on track to go to the U.S. Supreme Court. Both involve challenges to state laws that seek to prohibit social media and other large online platforms from censoring or banning conversations they don't like. In Moody, the 11th Circuit Court of Appeals concluded that online platforms have a First Amendment right to censor users, but the 5th Circuit Court of Appeals reached the opposite conclusion in Paxton. How the disagreement is resolved will likely have far-reaching consequences for the future of digital communication. We take a look at the state laws at issue, the reasoning behind both decisions, and the reasons to be concerned about corporate monopolies holding the power to control public discourse.

The opinions are available online for review:

NetChoice v. Moody: https://law.justia.com/cases/federal/appellate-courts/ca11/21-12355/21-12355-2022-05-23.html

NetChoice v. Paxton: https://law.justia.com/cases/federal/appellate-courts/ca5/21-51178/21-51178-2022-09-16.html

00:00 Intro
01:58 Corporate control of political conversation has been a concern since Citizens United
05:51 The state laws at issue in both NetChoice cases try to stem these concerns
09:09 NetChoice argues these laws violate the platforms' First Amendment rights
10:09 Moody treats deplatforming as protected editorial decisions like newspapers have
11:16 Both cases also consider whether platforms are common carriers - what's that??
14:03 Moody said platforms are conditionally open to users, so not common carriers
16:00 Moody treated Section 230 as proof platforms aren't common carriers
19:38 Paxton and Moody reach opposite conclusions from the same legal precedents
21:06 Paxton rejects the idea that platforms are engaged in speech
23:48 Paxton also saw platforms as common carriers
27:20 And Paxton disagrees that moderation is editorial because most stuff is never looked at
29:18 A key issue for Paxton was that platforms are becoming the new public square
31:56 The conflict in these decisions make it likely the US Supreme Court will decide