Oct. 2, Jared Schroeder, associate professor of journalism at SMU Dallas and a specialist in social media and First Amendment issues, for a commentary critical of a federal court ruling that upheld some Texas social media legislation that many deem unconstitutional. Published in the Dallas Morning News under the heading The 5th Circuit got it wrong in Texas social media case: https://tinyurl.com/3bt86kf5
The 5th U.S. Circuit Court of Appeals reinstated Texas’ social media law on Sept. 16. All it had to do was ignore nearly a century of precedent.
The appeals court, which is one step below the Supreme Court, turned a legal no-brainer into a meandering 113-page grab-bag of ideas.
Among other things, the Texas law prohibited large social media platforms (those with more than 50 million active users) from censoring content based on the users viewpoint.
By Jared Schroeder
The 5th U.S. Circuit Court of Appeals reinstated Texas’ social media law on Sept. 16. All it had to do was ignore nearly a century of precedent.
The appeals court, which is one step below the Supreme Court, turned a legal no-brainer into a meandering 113-page grab-bag of ideas.
Among other things, the Texas law prohibited large social media platforms (those with more than 50 million active users) from censoring content based on the users viewpoint.
Decade after decade, and brick by brick, justices have built strong foundational precedents in cases such as West Virginia vs. Barnette, that the Frst Amendment protects private speakers from being compelled by the government to communicate. According to the Supreme Court’s decisions in cases such asFirst National Bank vs. Bellotti and Citizens United vs. FEC, corporations generally have the same rights as people. The court went out of its way to establish that private corporations, such as social media firms, cannot be compelled to publish in Miami Herald vs. Tornillo.
The Supreme Court reasoned, “The clear implication has been that any such a compulsion to publish that which ‘reason tells them should not be published’ is unconstitutional.”
Texas’ social media law is flagrantly unconstitutional by all these standards. It has been challenged by trade groups that warn it would prevent platforms from removing extremism and hate speech.
When justices shun precedent in favor of political ideology, they are acting as super-legislators, wielding power to both interpret existing law and enact de facto revisions to it. This is the last thing we need.
Political ideology has always played a role in jurists’ thinking. Precedent, however, is crucial. Precedent is when jurists use past conclusions in similar cases to inform future decisions. It creates judicial ground rules. Precedent provides us consistency and clarity regarding what our rights are and grants courts credibility. A functioning democracy requires both of these building blocks. From day to day, we must know what our rights are.
At the same time, we have to retain some faith that the judicial branch is playing its part in democracy. We don’t need politicians in robes. We need courts that do their part in the democratic, checks-and-balances design.
The 5th Circuit’s decision is at odds with our free-expression tradition. It also clashes with the 11th Circuit’s recent decision to halt a nearly identical Florida law.
Florida asked the Supreme Court to review the 11th Circuit’s decision last week, and justices will almost certainly take up the cases and resolve the conflicting rulings.
It’s not clear what the Supreme Court will decide. But it should be. We should know the answer to whether the government can force a private entity to communicate ideas. We have a century of precedent that tells us the government cannot compel speech.
When ideology is the low, flexible bar for what our rights are, however, things get murky. We’re increasingly left to guess and gamble when courts don’t follow their own rules.
The 5th Circuit likely knew it was eschewing its duties. A court that is confident in a well-grounded decision doesn’t take 113 pages to make its case. Neither does it release the decision on a Friday afternoon.
Precedent isn’t absolute, and there is such a thing as bad precedent. But there’s a reason Americans’ confidence in the Supreme Court slipped 11 percentage points this year. Ideological rather than precedent-based decision-making like the 5th Circuit exhibited, and the uncertainty that comes with it, makes us wonder which rights will be dissolved next.
There’s little we can do when jurists become more like monarchs than umpires. While they’re a crucial part of our democracy, the courts are the most undemocratic branch of government. Those on the Supreme Court, circuit courts, and federal district courts are unelected, generally unaccountable, and serve lifetime terms. We can’t vote them out, unlike members of Congress. When the judicial branch swerves into political activism, it becomes the most dangerous branch.
Alexander Hamilton promised us this wouldn’t happen. In the 1780s, he contended in the Federalist Papers, which were published to garner support for the Constitution, the judicial branch would be “the least dangerous to the political rights of the Constitution.” He emphasized the courts lack the “purse” or “sword.”
We’ll have to excuse him. He hadn’t met the 5th Circuit or today’s Supreme Court.
Our only option is to let ideology-dominated courts know we see what they’re doing. Let them know we’re losing faith in them because they’re failing to follow their own rules. I’ve read the letters and personal journals of many of our greatest jurists and they often note the criticisms their decisions yielded. They hear. We’ll have to wait and see whether this court will temper its ideology by following precedent.
Until then, ideological based decisions are making our rights murky and uncertain and damaging the credibility of the courts that issue them.
Jared Schroeder is an associate professor of journalism at SMU in Dallas, where his research focuses on free expression and emerging technology. He wrote this for The Dallas Morning News.