United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED September 16, 2022 No. 21-51178 Lyle W. Cayce Clerk

NetChoice, L.L.C., a 501(c)(6) District of Columbia organization doing business as NetChoice; Computer Communications Industry Association, a 501(c)(6) non-stock Virginia Corporation doing business as CCIA,

Plaintiffs—Appellees,

versus

Ken Paxton, in his official capacity as Attorney General of Texas,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:21-cv-840

Before Jones, Southwick, and Oldham, Circuit Judges. Andrew S. Oldham, Circuit Judge: * 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.

* Judge Jones joins all but Part III.E and Part V.B.3 of this opinion.

1 Case: 21-51178 Document: 00516474571 Page: 2 Date Filed: 09/16/2022

No. 21-51178

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.

2 Case: 21-51178 Document: 00516474571 Page: 3 Date Filed: 09/16/2022

No. 21-51178

I. A. This case involves HB 20, a Texas statute that regulates la