“I think the Fifth Circuit decision means that it is now more likely than not that the Supreme Court, if asked, will avail itself of the opportunity to consider whether the Texas law, and similar ones, violate the First Amendment. I’m not confident of which way the Court would rule in such a case, but I am confident that the Fifth Circuit’s opinion would not — and should not — be lightly dismissed. The Fifth Circuit’s treatment of the First Amendment jurisprudence was thorough. And it was pretty persuasive in explaining why Section 230, which provides that an online platform shall not be treated as a ‘publisher or speaker’ of any content provided by a user, undermines the platforms’ arguments for holding their censorship actions are the platforms' own protected speech. I think if and when the Texas law or a similar one gets to the Supreme Court, the immunity from liability enjoyed by the platforms under Section 230 is likely to play a determinative role — one not likely to be helpful to sustaining the platforms’ First Amendment arguments."
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