United States Court of Appeals for the Fifth Circuit: NetChoice, L.L.C., a 501(c)(6) District of Columbia organization doing business as NetChoice; Computer Communications Industry Association, a 501(c)(6) non-stock Virginia Corporation doing business as CCIA, Plaintiffs—Appellees, versus Ken Paxton, in his official capacity as Attorney General of Texas, Defendant—Appellant.

 

 

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United States Court of Appeals
for the Fifth Circuit

No. 21-51178

NetChoice, L.L.C., a 501(c)(6) District of Columbia organization doing business as NetChoice; Computer Communications Industry Association, a 501(c)(6) non-stock Virginia Corporation doing business as CCIA, Plaintiffs—Appellees,
versus
Ken Paxton, in his official capacity as Attorney General of Texas, Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:21-cv-840

Before Jones, Southwick, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” 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 implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.


The First Amendment protects speech: It generally prevents the government from interfering with people’s speech or forcing them to speak. The Platforms argue that because they host and transmit speech, the First Amendment also gives them an unqualified license to invalidate laws that hinder them from censoring speech they don’t like. And they say that license entitles them to pre-enforcement facial relief against HB 20.

We reject the Platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee. The Platforms are not newspapers. Their censorship is not speech. They’re not entitled to pre-enforcement facial relief. And HB 20 is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way. The district court erred in concluding otherwise and abused its discretion by issuing a preliminary injunction. The preliminary injunction is VACATED, and this case is REMANDED for further proceedings consistent with this opinion.