Case: 21-51178
Document: 00516474571
Page: 19
Date Filed: 09/16/2022
No. 21-51178
thoughts, under the condition of being answerable . . . for false, malicious,
and seditious expressions, whether spoken or written”).
The Platforms neither challenge this understanding of the First
Amendment’s original meaning nor suggest that Section 7 runs afoul of it.
This apparent concession is unsurprising. First, Section 7 does not operate
as a prior restraint on the Platforms’ speech—even if one accepts their
characterization of censorship as speech. Recall Blackstone’s criticism of
prior restraints: that they “subject all freedom of sentiment to the prejudices
of one man, and make him the arbitrary and infallible judge of all controverted
points in learning, religion, and government.” 4 Blackstone, supra, at
*151–52. The Platforms operate “the modern public square,” Packingham,
137 S. Ct. at 1737, and it is they—not the government—who seek to defend
viewpoint-based censorship in this litigation.
Second, Section 7 does not prevent anyone from expressing their
good-faith opinions on matters of public concern. Precisely the opposite:
Section 7 protects Texans’ ability to freely express a diverse set of opinions
through one of the most important communications mediums used in that
State. And it leaves the Platforms free to similarly opine: They can still say
whatever they want (or decline to say anything) about any post by any user.
Moreover, Section 7’s exceptions—where viewpoint-based censorship is still
permitted, like certain specific threats of violence—contemplate malicious,
bad-faith speech not protected by the First Amendment as originally
understood. See Campbell, Emergence of Neutrality, supra, at 878. So Section
7’s carveouts do nothing to impugn its constitutionality under the First
Amendment’s original meaning.
C.
Rather than mount any challenge under the original public meaning of
the First Amendment, the Platforms instead focus their attention on
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