5th Circuit v. 5th Circuit: When Can And When Can’t The Government Coerce Content Moderation Decisions?

So, I already wrote a long post walking through the mostly very good 5th Circuit ruling in the Missouri v. Biden case, in which the court threw out most of the district court judge's injunction against the government communicating with social media companies and academics. The end result is a very good, straightforward ruling on the 1st Amendment that reminds the government that they cannot coerce social media platforms on how they moderate.

The only bit left in the case is an injunction telling the government that they shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage" content moderation decisions by social media companies. Which is correct.

But I'm having a little difficulty trying to square that with the batshit crazy ruling from the very same 5th Circuit almost exactly a year ago, reinstating Texas' state law on content moderation that pretty fucking clearly forces websites to moderate the way the government wishes them to.

Now, the two separate three judge panels have no overlap in judges, so you could argue that explains it. But, also, this latest ruling doesn't even mention the earlier ruling. Which seems odd.

Now, I get what some people will say: they will claim that the two rulings don't conflict at all if you read both of them to say that the government cannot force companies to take down content, but that it can force companies to leave up content. The Missouri ruling says the former, and the NetChoice ruling says the latter.

But that can't be correct. The 1st Amendment protects against both scenarios and does so equally. The rights against compelled speech are just as important as the rights against suppressed speech. Because without one, you really don't have the other. Freedom of speech covers both what you do and what you don't say.

But the 5th Circuit seems to be suggesting only half of that applies. The half that allows the government to compel speech.

Of course, there is one other way to make the two rulings consistent: it's a violation of the 1st Amendment when Democratic government officials do it, and it's not a violation of the 1st Amendment when Republican government officials do it.

And people wonder why the public no longer trusts the judicial system to be impartial.