https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-c...
Part of me would like to think that is enough to get it struck down given how sloppy it was. However it would also not surprise me at all if there was some feat of mental gymnastics that would allow it to be upheld either.
This is of low value, because (1) it is more about playing to prevailing Twitter threads (ooooh he dissed the founders as old white men!) rather than legal analysis; and (2) the legal analysis, such as it is, starts from the presumption that social media companies are press rather than another business ("The opinion reaches this conclusion by treating the owners of companies in the biz of speech as identical to the owners of other businesses."). I don't think that presumption is well-established.
Critical take: https://www.lawfareblog.com/fifth-circuits-social-media-deci...
This one is much better. For example, it rightfully points out that the Fifth Circuit opinion does a poor job connecting its analysis of editorial discretion to First Amendment jurisprudence ("the court never explains why public acceptance of responsibility is necessary as a matter of constitutional law, for First Amendment protection"). In my gut, I still don't agree, but I may come around after digesting this more. This critical piece is of high quality.
Supportive take (summarized): https://reason.com/volokh/2022/09/23/another-commentary-on-t...
I can't find the original source, but the pulled quotes seem insightful. "The opinion's critics argue that the First Amendment protects the act of exercising 'editorial discretion': the right of platforms to control what content they transmit. But, critics forget that the First Amendment protects only expressive acts—a point made clear in the two Supreme Court case on which Big Tech (and Judge Oldham's critics) base all their critique: Miami Herald v. Tornillo and Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston. In Miami Herald, the Supreme Court held that when newspaper editors decide to include a particular op-ed in their pages, they convey the editors' message that the article is insightful or otherwise valuable. Similarly, the St. Patrick Day's Parade organizers in Hurley, expressed a message, attributable to them, of general support for each group it approved to march, communicating with the various groups a discrete set of ideas and positions. In contrast, most platform acts of content moderation are not expressive under the Supreme Court tests. Most obviously, they are not expressive because most are never communicated and therefore cannot convey a message. For instance, shadow banning, by which a platform renders a user's posts invisible to all but that user, cannot convey a message because no one knows, except the platform, that it is happening."
That's nonsense. Anyone on a heavily moderated forum can see that the "message" produced from proper moderation (things you can't see like behind the scenes spam prevention and banning) have a visible result in a higher quality forum experience. We literally see this here. Moderation is a choice, and by what things you do to moderate, you are making editorial choices that have outward effects. If you decide to shadowban any account not posting from florida, that will have an outwardly visible message that non-floridians are unwelcome. The first amendment makes no mention about the type of speech that congress cannot make a rule against.
Consider a store. If the Gay-Straight Alliance or similar approaches hobby lobby about some promotion, and hobby lobby says no internally, there's no outwardly visible evidence without affidavit from GSA and yet that's still a protected choice of Hobby Lobby over their own speech.