The US Court of Appeals for the Fifth Circuit in July delivered a key victory for social media platforms against states seeking to impose their own content-based publication requirements and punish platforms that don’t follow them. Unfortunately, a partial dissent by Judge James Ho clouds the free-speech win in Computer & Communications Industry Association (CCIA) v. Paxton. That’s because the “potential” Supreme Court nominee adopted a problematic you-can’t-have-both stance that I recently critiqued regarding the relationship between platforms’ First Amendment right of editorial discretion when curating others’ content—a right the US Supreme Court recognized in Moody v. NetChoice—and their federal statutory protection from civil liability under Section 230(c)(1) when publishing others’ content.
Let’s start with the good news and then address Ho’s opinion. The two-judge majority in CCIA affirmed a lower court injunction barring Texas from enforcing part of a law that requires platforms to “develop and implement a strategy to prevent” minors from accessing harmful sexual material and “other content that promotes, glorifies, or facilitates” harms including eating disorders, substance abuse, bullying, and harassment. This facet of Texas House Bill 18 constitutes a “monitoring and filtering requirement.” Platforms violating it face potential enforcement actions brought by Texas’s Attorney General and minors’ parents and guardians.
Joined by Judge Patrick Higginbotham, Judge Dana Douglas reasoned that the monitor-and-filter mandate was “squarely preempted by Section 230” because efforts to enforce it stem “from [platforms’] actions as publishers, that is, from their monitoring, screening, and deletion of content.” Section 230(c)(1) bars claims that treat platforms “as the publisher or speaker of any information provided by another information content provider,” while Section 230(e)(3) provides that “no liability may be imposed under any State or local law that is inconsistent with this section.”
In brief, because Texas’s law imposes a duty on platforms to monitor and segregate certain varieties of third-party content, it regulates “[a]ctions quintessentially related to a publisher’s role” and Section 230 preempts it. The majority thus never needed to address constitutional questions about whether Texas’s law limiting minors’ access to lawful, allegedly harm-causing content passes constitutional muster under strict scrutiny.
It’s here where the relationship between platforms’ First Amendment, Moody-recognized right of editorial freedom to curate third-party content free from government interference and platforms’ statutory protection from civil liability based on their decisions about publishing that content comes into high relief. Can a social media platform hold both safeguards—one constitutional, one statutory—simultaneously?
In accord with most courts, Judges Douglas and Higginbotham answered in the affirmative:
Viewing our Section 230 precedent together with Moody, the First Amendment protects the [platforms’] editorial discretion from unconstitutional government regulation, and Section 230 protects those same decisions from civil liability based on third-party content. The argument that we must choose between them presents a false choice.
They reasoned that speech can “be both protected by the First Amendment and subject to [Section 230] preemption on the grounds that the speaker may not be treated as a publisher,” especially because Section 230 was intended to prevent a chilling effect on publishing First Amendment-protected expression.
This is where Judge Ho, dissenting, flexed his anti-tech muscles and pushed back—in perfect alignment with the views of Justice Clarence Thomas, for whom Ho clerked at the Supreme Court. For Ho and Thomas, a platform cannot simultaneously hold a constitutional right to curate others’ content and statutory protections when publishing it. In CCIA, Ho favorably cites and quotes Thomas’s dissent from the denial of a petition for a writ of certiorari in Doe v. Snap, Inc. to support Ho’s stance about the incompatibility of platforms’ First Amendment curation rights and Section 230’s publishing safeguards. Reasoning that the Supreme Court’s Moody decision bars Section 230’s preemption of Texas’s monitor-and-filter mandate, Ho would have let Texas’s law take effect.
Ho was seated on the Fifth Circuit in 2017 after being nominated by Donald Trump. He is considered “a leading contender for President Trump’s next appointment to the US Supreme Court.” Ho has also been called “one of the most brazenly partisan judges in the country,” with the Washington Post suggesting—based partly on an interview Ho gave in November 2024—that he “appeared to shift his position on birthright citizenship to more closely align with Trump’s view that illegal immigration had morphed into an ‘invasion’ and should be limited.”
In a July speech lauding both Justices Thomas and Samuel Alito for their “judicial courage,” Ho openly acknowledged that “many judges lobbied for” their positions on the federal bench. Regardless of whether Ho’s partial dissent in CCIA constitutes a high-court lobbying effort, if Ho ever is nominated to the Supreme Court, then his CCIA opinion merits especially close scrutiny by the Senate Judiciary Committee and his nomination should be deeply concerning to Meta, Google, Snap, and other social media platform businesses.