5CA: the First Amendment does not permit freedom of association
By 
If I were made Prime Minister of the United States for a day the Fifth Circuit would have 30 seats by the end of it:
However, remember, back in May when Texas initially reinstated the law, it said it would come out with its full ruling later. Over the last few months I’ve occasionally pondered (sometimes on Twitter) whether the 5th Circuit would ever get around to actually releasing an opinion. And that’s what it just did. And, as 1st Amendment lawyer Ken White notes, it’s “the most angrily incoherent First Amendment decision I think I’ve ever read.”
It is difficult to state how completely disconnected from reality this ruling is, and how dangerously incoherent it is. It effectively says that companies no longer have a 1st Amendment right to their own editorial policies. Under this ruling, any state in the 5th Circuit could, in theory, mandate that news organizations must cover certain politicians or certain other content. It could, in theory, allow a state to mandate that any news organization must publish opinion pieces by politicians. It completely flies in the face of the 1st Amendment’s association rights and the right to editorial discretion.
There’s going to be plenty to say about this ruling, which will go down in the annals of history as a complete embarrassment to the judiciary, but let’s hit the lowest points. The crux of the ruling, written by Judge Andy Oldham, is as follows:
Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.
Considering just how long Republicans (and Oldham was a Republican political operative before being appointed to the bench) have spent insisting that corporations have 1st Amendment rights, this is a major turnaround, and (as noted) an incomprehensible one. Frankly, Oldham’s arguments sound much more like the arguments made by ignorant trolls in our comments than anyone with any knowledge or experience with 1st Amendment law.
I mean, it’s as if Judge Oldham has never heard of the 1st Amendment’s prohibition on compelled speech.
In addition to being substantively ridiculous, 5CA literally chides the companies for citing Supreme Court precedents that are, you know, fully binding on the court rather than starting with 4Chan historical analysis:
A true sign-of-the-times sentence from the 5th Circuit ruling: “Rather than mount any challenge under the original public meaning of the First Amendment, the Platforms instead focus their attention on Supreme Court doctrine.”
Wow.
14/— Daphne Keller (@daphnehk) September 17, 2022
The scariest thing is that this is by no means an outlier for the Fifth Circuit — it is not a “court of law” in any meaningful sense.