https://twitter.com/SethDillon/status/1575208173044219909

Looks like the Babylon Bee is going to go to bat for her legally.

Also the lawyer letter cited to a recent decision filed on September 16, 2022: NetCHOICE, LLC v. Paxton, Court of Appeals, 5th Circuit 2022 https://scholar.google.com/scholar_case?case=11022922239956994455

This Opinion is really outstanding. Excerpts from the Opinion below:

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. 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.

The implications of the platforms' argument are staggering. On the platforms' view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What's worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as "the free speech wing of the free speech party." Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of "the modern public square," Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39-22:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

Under these precedents, a speech host must make one of two showings to mount a First Amendment challenge. It must show that the challenged law either (a) compels the host to speak or (b) restricts the host's own speech. The Platforms cannot make either showing. And (c) the Platforms' counterarguments are unpersuasive.

Let's start with compelled speech. In Miami Herald, the Supreme Court held that Florida's right-of-reply law was unconstitutional because it compelled newspapers to speak... The Platforms are nothing like the newspaper in Miami Herald. Unlike newspapers, the Platforms exercise virtually no editorial control or judgment... Thus the Platforms, unlike newspapers, are primarily "conduit[s] for news, comment, and advertising." Miami Herald, 418 U.S. at 258. And that's why the Supreme Court has described them as "the modern public square." Packingham, 137 S. Ct. at 1737; see also Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 1224 (2021) (Thomas, J., concurring) (noting Platforms are also "unlike newspapers" in that they "hold themselves out as organizations that focus on distributing the speech of the broader public"). The Platforms' own representations confirm this.

It is no answer to say, as the Platforms do, that an observer might construe the act of hosting speech as an expression of support for its message. That was the precise contention the Court rejected in both PruneYard and Rumsfeld

Recognizing that their compelled-speech analogy to newspapers is a stretch, the Platforms turn to parades and the Hurley case. ... The Platforms instead contend that their censorship is protected because Hurley creates a freewheeling right for speech hosts to discriminate against messages they don't like. Hurley said nothing of the sort.

Nor can the Platforms point to the content they do censor and claim that makes them akin to parade organizers. In Rumsfeld, for example, the law schools argued that their denial of access to military recruiters was protected expressive conduct because it "expressed" the schools' disagreement with the military. 547 U.S. at 66. But the Court held that the denial of access was not inherently expressive, because such conduct would only be understood as expressive in light of the law schools' speech explaining it... The same reasoning applies here... Section 7 does not compel the Platforms to speak.

Nor does it do anything to prohibit the Platforms from speaking. That's for three independent reasons. First, the Platforms have virtually unlimited space for speech, so Section 7's hosting requirement does nothing to prohibit the Platforms from saying what they want to say. Second, the Platforms are free to say whatever they want to distance themselves from the speech they host. Third, Section 7 does not impose a content-based penalty on the Platforms' speech.

The Platforms do not seriously dispute any of this. Instead, they argue that Section 7 interferes with their speech by infringing their "right to exercise editorial discretion." ... Section 7 burdens the Platforms' First Amendment rights by obstructing their censorship efforts.

Accordingly, the Platforms cannot invoke "editorial discretion" as if uttering some sort of First Amendment talisman to protect their censorship. Were it otherwise, the shopping mall in PruneYard and law schools in Rumsfeld could have changed the outcomes of those cases by simply asserting a desire to exercise "editorial discretion" over the speech in their forums.

Even assuming "editorial discretion" is a freestanding category of First-Amendment-protected expression, the Platforms' censorship doesn't qualify. Curiously, the Platforms never define what they mean by "editorial discretion." ... But whatever the outer bounds of any protected editorial discretion might be, the Platforms' censorship falls outside it. That's for two independent reasons.

First, an entity that exercises "editorial discretion" accepts reputational and legal responsibility for the content it edits... Second, editorial discretion involves "selection and presentation" of content before that content is hosted, published, or disseminated... The Platforms offer no Supreme Court case even remotely suggesting that ex post censorship constitutes editorial discretion akin to ex ante selection.[17] They instead baldly assert that "it is constitutionally irrelevant at what point in time platforms exercise editorial discretion."

We have no doubts that Section 7 is constitutional. But even if some were to remain, 47 U.S.C. § 230 would extinguish them. Section 230 provides that the Platforms "shall [not] be treated as the publisher or speaker" of content developed by other users. Id. § 230(c)(1). Section 230 reflects Congress's judgment that the Platforms do not operate like traditional publishers and are not "speak[ing]" when they host user-submitted content. Congress's judgment reinforces our conclusion that the Platforms' censorship is not speech under the First Amendment.

[stopping here because I came already]

Author: ANDREW S. OLDHAM [TRUMP]

Edith Hollan Jones [Reagan] concurring

Leslie H. Southwick [GWB] DISSENTED AND SIDED WITH CENSORSHIP ["The central question in this case is whether social media platforms engage in First Amendment-protected expression when they moderate their users' content. The erudite opinion of my colleagues in the majority says no. Although there are parts of the opinion I join, I write separately because, fundamentally, I conclude the answer to the question is yes."]