The Basis for Particular person Rights and Expression just lately posted a video of a podcast on which authorized scholar Brad Smith (who can be chairman of the Institute for Free Speech) and I debated the latest Fifth Circuit determination upholding the constitutionality of Texas’ social media legislation, which bars main social media platforms from participating in most types of content material moderation.
Within the podcast, I criticized the Fifth Circuit ruling, expanded on a submit explaining why the Texas is a menace to freedom of speech, addressed the “frequent provider” rationale for the Texas legislation, and likewise briefly summarized why the legislation violates the Takings Clause of the Fifth Modification (a difficulty that has but to be litigated in court docket). Brad largely defended the constitutionality of the Texas legislation. However it’s notable that he was unwilling to endorse a number of the main arguments superior by the Fifth Circuit majority, and by different defenders of the legislation. We each agree this difficulty is more likely to get to the Supreme Courtroom (partly as a result of the Eleventh Circuit reached a opposite determination in a ruling on Florida’s comparable legislation). For my part, the Courtroom has already signaled {that a} majority of justices imagine the Texas legislation is unconstitutional, when it overturned a earlier Fifth Circuit ruling lifting a trial court docket injunction towards implementation of the legislation.
I wish to thank FIRE for organizing this occasion, and Brad Smith for his insightful contribution to the dialogue.