In a Blow to Free Speech, Texas’ Social Media Law Allowed to Proceed Pending Appeal

A constitutionally problematic Texas law limiting social media companies exercising their First Amendment rights to curate the content they carry can go into effect after a federal appeals court lifted a lower court’s injunction blocking it.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision, lifted the injunction in a one-sentence order without giving a reason. The law, Texas HB 20, which prohibits large social media platforms from removing or moderating content based on the viewpoint of the user, can now be enforced while the court continues to consider the appeal.

This decision to allow the law to be enforced before the court has ruled on its legality is wrong. It creates great uncertainty, will likely spawn numerous lawsuits, and will chill protected speech, all to the detriment of users of large social media sites in the US and everywhere.

The lower court blocked the law for violating the First Amendment and Texas appealed. We filed amicus briefs in both the trial and appeals courts, arguing that the government cannot regulate editorial decisions made by online platforms about what content they host. We told the Fifth Circuit that, while the content moderation decisions of social media companies can be frustrating, internet users nevertheless are best served when the First Amendment protects companies’ right to edit their platforms as they see fit.

Those protections ensure that social media sites can curate content free from governmental mandates, giving users a diverse array of forums to read and contribute to. Under HB 20 social media platforms “may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on . . . the viewpoint of the user or another person.” Users and the Texas Attorney General can sue companies they believe violated the law.

HB 20 is clearly a retaliatory measure aimed at punishing platforms for an alleged anti-conservative bias. As EFF’s brief explained, the government can’t retaliate against disfavored speakers and promote favored ones. Moreover, HB 20 would destroy or prevent the emergence of even larger conservative platforms, as they would have to accept user speech from across the political spectrum.

The lawsuit was filed by tech industry groups NetChoice  and the Computer and Communications Industry Association (CCIA); NetChoice plans to appeal the ruling. In the meantime, it’s unclear how and whether it will be possible for the companies bound by the law to comply with it.

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Categories: Electronic Frontier Foundation

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