Did Fifth Circuit Put Texas In Charge of The Internet?

The internet is, as most people know, everywhere, which makes it something of a problem for those who either want to regulate it or signal to their supporters that they would, if they could. But they can’t, obviously, because it’s the friggin’ internet, right? Well, the European Union did, to some extent, and Congress holds hearings about it all the time as both sides want to control it, albeit for different reasons.

Then along comes Texas, because it’s Texas, with a cockamamie bill that everyone who has any clue about law and cyberspace knows with absolute certainty can’t be upheld because it’s a flagrant affront to the First Amendment. How bad? This bad.

Sec. 143A.002. CENSORSHIP PROHIBITED.

(a) A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:

(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user’s expression or another person’s expression; or
(3) a user’s geographic location in this state or any part of this state.

This is not a question of whether you wishcast the companies that own the websites you use and enjoy on the internet internet to be public property rather than private, but whether the Republic of Texas gets to make it so, for its own citizens at least because the internet works that way.

The enactment of this law was easy. After all, it would show Texans how fair and just their state government was, seeking to save them from the censorship of their beloved politicians and pundits by the hated Big Tech. And the reason it was so easy was because they know, with as much certainty as an elected official can muster, that this law would never, but never, be upheld in court.

Sure, there were likely some dopes who had no clue how constitutional law worked who believed this law was good, but there’s no requirement that elected officials be knowledgeable or be familiar with reality.

And when the district judge did what he would obviously be required to do, enjoin this law that was an obvious violation of the First Amendment, not to mention just plain dumb in that it demonstrated no grasp of how the internet worked or what businesses on the internet did (is Twitter an ISP because the law says so?)

Yesterday, the obvious came crashing down. Following oral argument on the appeal of the district court’s injunction, the Fifth Circuit issued this order.

What this means is that the law that nobody could possibly believe would ever take effect is going to take effect. What this suggests is that, by staying the injunction after oral argument, the non-unanimous panel will uphold this law, and vacate the injunction.

This is nuts. But in the Fifth Circuit, at least for now, this is the law.

And this is the law as of the moment that order was released, even though it would be impossible for internet companies to comply with the procedural requirements of the law even if they wanted to. What this means for the internet in Texas is anybody’s guess at the moment. If compliance is impossible, do they “turn off” the internet to Texas?

But even more to the point, if two judges on the Fifth Circuit panel, for whatever reason, have decided that the Constitution be damned, it’s time to seize control of social media for the public good, what if another state in another circuit decides that it, too, will control the internet and demand the opposite of Texas? After all, if Texas can dictate what internet companies must carry, can’t California or Oregon?

Arguments have been proffered as to why social media websites like Facebook and Twitter should be deemed the public square as a consequence of their market dominance. After all, if that’s where all the people are, who use is yelling into an empty void? And just because the public square is now privately owned doesn’t mean it’s not where everybody wants to jump atop a soapbox and speak their mind, right?

The emotional appeal of these arguments notwithstanding, they remain legally nonsensical. Corporations have First Amendment rights. Corporations (yes, even corporations whose stock trades publicly) are private entities. They can’t be seized for the public good because you want them to be. And you really don’t want them to be anyway, as that would render them as much a tool of the other tribe when they push the buttons of state as yours.

So what happens now that the Fifth Circuit has stayed the injunction? The swiftest mechanism to return the metasphere to equilibrium would be to seek a stay of the stay of the injunction from the Supreme Court using its “shadow docket” for emergency relief. The alternative would be to seek review from the circuit en banc, but that wouldn’t be an emergency proceeding.

In the meantime, what’s to be done? Compliance with this nonsensical law is impossible. Noncompliance is, well, a violation. And the brighter lights in Texas’ state government are about to realize that their joke of a law, designed solely to virtue signal to their red-hatted groundlings who would love this law without the slightest clue of how bad, untenable and unconstitutional it was, suddenly realize that the impossible happened. This loony law was just upheld and will go into actual effect. What do you plan to do now, Texas? And what do internet companies plan to do about this, unless and until this law is once again enjoined?

Will good citizens of the Republic of Texas wake up this morning to find they can no longer access the interwebs? Not likely, but then an awful lot of legal lunacy has happened of late, making predictions based on law and reason an iffy proposition.