“Radical” ruling lets Texas ban social media moderation based on “viewpoint”
A federal appeals court has reinstated a Texas state law that bans “censorship” on social media platforms such as Facebook and Twitter, allowing Texas to enforce the law while litigation continues.
A US District Court judge had granted a preliminary injunction blocking the law in December, ruling that it violates the social networks’ First Amendment right to moderate user-submitted content. Texas Attorney General Ken Paxton appealed the injunction to the US Court of Appeals for the Fifth Circuit, and a panel of three judges issued a ruling Wednesday that stayed the preliminary injunction.
The ruling did not explain the judges’ reasoning. “It is ordered that appellant’s opposed motion to stay preliminary injunction pending appeal is granted,” the ruling said. The panel ruling was not unanimous, but it didn’t say how each judge voted.
The ruling is “startlingly radical,” said Corbin Barthold, Internet policy counsel at TechFreedom, a libertarian think tank that filed a brief in the court case. “Social media companies now face the prospect of liability for making distinctions based on ‘viewpoint.’ (For instance, treating pro-ISIS content differently than anti-ISIS content.) But there are many other difficulties to applying this law. 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,” Barthold said.
In a tweet, Paxton called the ruling a “BIG WIN against BIG TECH,” adding, “I look forward to continuing to defend the constitutionality of HB 20.” The state law says that a “social media platform may not censor a user” based on the user’s “viewpoint” and defines “censor” as “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” The Texas attorney general or users can sue social media platforms that violate this ban and win injunctive relief and reimbursement of court costs, the law says.
Judges “struggle with basic tech concepts”
Oral arguments were held on Monday this week, and the judges “seemed to struggle with basic tech concepts,” Protocol reported. Judges were skeptical of arguments made by tech industry groups NetChoice and the Computer & Communications & Industry Association (CCIA), which sued Texas to block the law. “[O]ne judge suggested that Twitter isn’t even a website, and another wondered if phone companies have a First Amendment right to kick people off their services,” Protocol wrote.
“Your clients are Internet providers,” Judge Edith Jones reportedly told the lawyer for NetChoice and CCIA. “They are not websites.” The two groups’ members are in fact almost entirely websites and online services rather than Internet service providers—see NetChoice’s members here and CCIA’s here. Amazon, eBay, Facebook, Google, Twitter, and Yahoo are all members of both groups.
At another point in the hearing, “Judge Andrew Oldham suggested that if the tech platforms succeeded, it would allow phone companies to kick off users,” Protocol reported. “Under your theory, could Verizon decide that they’re going to overhear every phone call… and when they hear speech they don’t like, they terminate the phone call?” Oldham asked.
Telephone companies are classified as common carriers and regulated by the Federal Communications Commission. No such designation has been applied to websites, though Supreme Court Justice Clarence Thomas has argued that digital platforms could be regulated as common carriers.
CNN tech reporter Brian Fung also detailed the Fifth Circuit judges’ confusion in a Twitter thread. Oldham called it “extraordinary” that Twitter has a First Amendment right to ban certain kinds of speech, even though the First Amendment’s free speech guarantee is imposed on Congress, not private companies. The tech groups’ lawyer, Scott Keller, pointed out that “when it comes to private entities, government doesn’t get to dictate what they must disseminate, what they can’t disseminate,” according to Fung’s account.
Jones is a Reagan appointee, while Oldham was appointed by Trump. The third judge in the panel, Leslie Southwick, was appointed by George W. Bush.
Tech groups can appeal or proceed to trial
Netchoice and CCIA could seek an en banc hearing with all the court’s judges or eventually go to the Supreme Court. They could also wait for the trial to play out in US District Court for the Western District of Texas, where Judge Robert Pitman issued the preliminary injunction. Pitman found that the Texas law “compels social media platforms to disseminate objectionable content and impermissibly restricts their editorial discretion” and that the law’s “prohibitions on ‘censorship’ and constraints on how social media platforms disseminate content violate the First Amendment.”
NetChoice called the ruling overturning Pitman’s decision “highly unusual” because the panel “lifted the district court’s injunction of HB 20 without deciding on the merits and without issuing a written decision. Given the unprecedented move, NetChoice and CCIA are evaluating our legal options.”
“The 2-1 split order issued on May 11 does not address the lawsuit’s merits—in other words, the court did not evaluate HB 20’s constitutionality; the court is instead letting the law take effect while the case proceeds in the lower court. In practical terms, this means the district court is free to rule on the merits and hold that HB 20 is unconstitutional—albeit while the law is in effect,” NetChoice wrote.
Under the Texas law, a platform that labels a post as misinformation “may be discriminating against that user’s viewpoint by adding its own disclaimer,” Pitman wrote. The law thus “restricts social media platforms’ First Amendment right to engage in expression when they disagree with or object to content.”
The threat of lawsuits for violating the state law “chills the social media platforms’ speech rights.” Pitman also found that the law’s disclosure and operational requirements impose burdens on social media platforms’ editorial discretion and that the law “discriminates based on content and speaker.”
Pitman noted that Texas lawmakers excluded conservative social networks Parler and Gab by applying the law only to platforms with 50 million or more monthly active users in the US. One state senator “unsuccessfully proposed lowering the threshold to 25 million monthly users in an effort to include” sites like Parler and Gab, Pitman wrote.
The law has exceptions allowing companies to moderate any post that a “social media platform is specifically authorized to censor by federal law; is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment; directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge; or is unlawful expression.”
“No option is off the table”
“This unexplained order contravenes established First Amendment law,” CCIA President Matt Schruers said. “No option is off the table. We will do what is necessary to ensure that the free market, not government fiat, decides what speech digital services do and do not disseminate.”
When the Texas law was enacted in September 2021, the industry groups said the law could force social media to host misinformation and hate speech and that it “seeks to punish social media companies for following policies that protect Internet users from dangerous content online.”
NetChoice and CCIA separately won an injunction blocking a Florida law that would make it illegal for large social media sites like Facebook and Twitter to ban politicians and impose other restrictions on the tech companies. Florida appealed the injunction to the US Court of Appeals for the Eleventh Circuit. Oral arguments were held on April 28, and no ruling has been issued yet.