(The opinions expressed in guest op-eds are those of the writer and do not necessarily represent the views of RedState.com.)
Last week’s Fifth Circuit Court decision upholding Texas’ law against Big Tech censorship is a welcome judgment that is worth considering for what it says about our constitutional order and the very purpose of government.
In September 2021, Texas enacted a law that prohibits social media platforms with more than 50 million monthly U.S. users from censoring people based on their viewpoints, requires transparency of companies’ user content policies and their application, and allows individuals to seek compensation for viewpoint discrimination.
Full disclosure: We at The Heartland Institute have worked with Texas and numerous other states across the country since January of last year to promote this sensible and workable way for people to obtain redress when social media companies violate their right to free speech. The Texas law relies on individuals to monitor the platforms and allows the tort system to provide compensation from the offending parties when people can show that they have been harmed.
Of course, the big content providers don’t like this. They have grown powerful because of the 26-year-old government-created free benefit of immunity against having to recompense consumers they harm. The suit was brought by NetChoice, an advocacy group that represents the interests of Big Tech.
The key premise behind NetChoice’s failed suit was that the First Amendment protects private companies from lawsuits over censorship. “We are disappointed that the Fifth Circuit’s split decision undermines First Amendment protections,” NetChoice stated in a press release.
The court strongly rejected that argument, noting the First Amendment prohibits the government from censoring speech but does not grant people (in this case, banded together as corporations), the right to censor one another’s speech.
“In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment,” the judges write. “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” (emphasis in original).
This is a powerful argument based on the fundamental reason we have governments in the first place: to protect individuals’ rights. People generally accept the need for government because we realize that we all benefit by banding together to protect our rights to life, liberty, and property. If we don’t do that, bad actors can rob, pillage, assault, defraud, and kill without recourse.
Governments, of course, being made up of imperfect people, are always tempted to overstep their boundaries, to reward favored groups and put the burdens on others. That is what Section 230 did: The federal government gave unearned power to social media platforms and took it away from the people.
The intention was good: to allow the internet to grow without legal harassment. The unfortunate result was the corruption and collusion we have today. Powerful multinational corporations muzzle speech and even work directly with the government to manage what people will be allowed to say about government policies and the premises behind them. These media giants went so far as to censor the news about Hunter Biden’s laptop computer and its files possibly implicating then-candidate Joe Biden in corruption, in the days before a hotly contested presidential election.
Putting the best face on it, NetChoice is guilty of a common error in political thinking: the notion that government incursions against individual rights are the only ones requiring our vigilance. On the contrary, the only reason we have governments is because people are naturally inclined to try to take advantage of one another. As James Madison wrote, “If men were angels, no government would be necessary.” The reason we constrain government is to ensure that it does not play favorites. “If angels were to govern men, neither external nor internal controls on government would be necessary,” Madison wrote.
The Texas law reflects a sound view of government and the Constitution. Before the Progressive movement introduced rule by experts in the late nineteenth century, regulation was largely accomplished through the tort system, where people are required to compensate those who can prove in a court of law that they have been harmed. That is a far more efficient and less-intrusive way of preventing people from harming others than the current massive, centralized, preemptive government regulatory apparatus that is constantly subject to manipulation by powerful interests.
The appeals court had two visions of the internet before it: one controlled by the interests of gigantic multinational corporations, or one regulated by market discipline based on successful service to consumers. The court also had two ideas of government before it: one in which the government does not protect individual rights when private parties are the offenders, or one that protects individuals’ rights from all those who would deny them.
The court chose well. Let’s hope that other courts throughout the land will follow that example.