Have you heard the news from the Fifth Circuit?
Spoiler: It's not great, Bob! We had a lot to say on Twitter and in the news about yesterday's ruling—plus, we share a new podcast episode about the evolution of FAANG.
Social media has been a hot topic this week, to put it lightly. One big piece of news yesterday—the Fifth Circuit staying a district court order blocking enforcement of Texas’s faulty social media law—has already made serious waves. But I’ve been also eyeing one less contentious social media-related development: the return of “The Circle” to Netflix!
Netflix has been releasing the new season in four-episode chunks, and the newest set came out yesterday. In case you missed previous installments of the show (including its French and Brazilian editions), “The Circle” is a contest where players battle to be the most likable on a social network created for the show through a mix of authentic and catfishing profiles. While I allude to Netflix’s general decline later in this letter, this particular show seems to be doing rather well for itself, since it’s attracted multiple celebrities to compete on this season! If you’re a fellow watcher, let me know what you think of the latest episodes!
Social Media Regulation. Stuff just got real with those state social media speech codes we’re always talking about. Last week, we mentioned the Eleventh Circuit oral argument for Florida’s law, SB 7072. It seemed to go alright. This Monday, though, the Fifth Circuit heard oral argument for Texas’s law, HB 20—and that was a whole different story. The good news is this: ours was the one (and only) amicus brief raised during the argument. Counsel for our side cited to it, and one of the judges said he’d read it “several times.” You can catch those glorious moments here (counsel raises our brief at 25:00; the judge mentions it at 26:00).
Other than that, though, the argument was a shambles. One judge conflated ISPs with websites. Another said it was “extraordinary” to think that private social media companies have editorial discretion. There was much more. The surprising upshot was that, just two days after the argument, in a ruling without an opinion, the Fifth Circuit stayed the district court’s order preliminarily enjoining HB 20. Corbin was hot off the mark tweeting about the order. Catch his thread here, and ours here.
The day after the ruling, Corbin was quoted in a pair of pieces at Protocol parsing the consequences of the Fifth Circuit’s radical move. “To just issue an order like this with no opinion on such an unprecedented law,” one of the pieces quoted Corbin as saying, “it had a flavor of spite to it.” In the other piece, Corbin said that he thinks the platforms are unlikely to invoke the “nuclear option” of trying to pull out of Texas. In addition, Corbin explained, to the fact that HB 20 appears not to allow such a departure—how crazy is that—the political ramifications would be untenable. Corbin’s choice article quote: “Can you imagine the loudmouths on Capitol Hill, the hell they would raise?”
We also released a statement on the whole imbroglio, which got picked up by Ars Technica. Their article quotes Corbin, right after the lede, saying: “No one—not lawyers, not judges, not experts in the field, not even the law's own sponsors—knows what compliance with this law looks like."
Tech Industry. Is FAANG about to lose some letters? In the newest Tech Policy Podcast, Adam Thierer, senior research fellow at the Mercatus Center, joined Corbin to work through what Facebook (now Meta) and Netflix’s tumbling stocks mean for competition in the tech space. The two discussed at length the government’s nasty habit, when enforcing the antitrust laws, of ignoring the role of creative destruction in unseating dominant market players. Adam and Corbin both cited a bit of their own work on free-market innovation—Adam shared insights from his book, Evasive Entrepreneurs and the Future of Governance: How Innovation Improves Economies and Governments, and Corbin plugged his 2019 opinion piece, “Can Experts Structure Markets? Don’t Count on It.”