Home Politics Free Speech, Social Media Firms, and the Fifth Circuit

Free Speech, Social Media Firms, and the Fifth Circuit


Blocked Facebook page
(Rafael Henrique | Dreamstime.com)

On Friday, in Missouri v. Biden, the US Court of Appeals for the Fifth Circuit ruled that the the White House and several other federal government agencies violated the First Amendment by coercing social media firms such as Facebook and Twitter to take down material the government deemed to be “misinformation” or otherwise harmful. I think the court largely got this case right. But the same court (albeit with a different panel of judges) was badly wrong last year when, in NetChoice v. Paxton, it upheld a Texas law requiring many of those same firms to post material they disapprove of. If the First Amendment bars government coercion to take down speech from your website, it also bars the use of coercion forcing you to put it up.

The ideological valence of the two cases is different. Broadly speaking, many on the left were sympathetic to the coercive government policies at issue in Missouri v. Biden, but hostile to those in NetChoice. Many conservatives hold the opposite views. But the principle at stake in the two cases is the same. Government coercion is inimical to freedom of speech, whether imposed by the right or the left, and whether it forces people to take down speech against their will or put it up.

In Missouri v. Biden, the Fifth Circuit concluded that the White…

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