The Fifth Circuit Updates Common Carrier Doctrine for Social Media Companies

Heritage Foundation -- Last month, in a case called NetChoice v. Paxton, the U.S. Court of Appeals for the Fifth Circuit, writing through Judge Andy Oldham, upheld Texas’s anti-censorship bill, H.B. 20. The law, designed to stop social medial companies from censoring users based on their personal opinions, required that platforms “may not censor . . . a user’s expression . . . based on the viewpoint of the user.” The opinion highlights how important social media is to our public discourse today. Social media platforms are “the forum for political discussion and debate,” Judge Oldham wrote, “and exclusion from the Platforms amounts to exclusion from the public discourse.” The opinion also demonstrates how challenging it can be to apply old First Amendment caselaw to this new online forum. The issue in the case was whether social media platforms can be treated like “common carriers” (like mail carriers, telephone companies, and railroads) and prohibited from discriminating against their users. The plaintiffs in the case—several social media platforms—claimed that they were not common carriers and had the right to discriminate against disfavored (read: conservative) speech because censorship is itself a form of protected expression.