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Texas law banning moderation by social media platforms gets nod from 5th Circuit
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Texas law banning moderation by social media platforms gets nod from 5th Circuit

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A controversial Texas law allowing citizens to sue social media platforms for censoring political speech takes effect after a federal appellate court reversed an injunction blocking the law from enforcement.

A three-judge panel of the Fifth Circuit Court of Appeals found that a federal district court erred in ruling that the law is facially unconstitutional and threatened the platform's speech rights.

House Bill 20 was passed by the Republican-controlled Texas Legislature last year and signed into law by the state’s Republican Governor, Greg Abbott. The law labels social media platforms with more than 50 million users, such as Facebook, Twitter and YouTube, as common carriers, requiring them to be open to all as a public forum. Users who believe their political speech was censored, either by the platform removing their content or banning their account, may sue the platform for declaratory and injunctive relief. 

In addition, the statute required platforms subject to the law to share all information regarding how they target users, promote content, moderate posts and use algorithms. 

Two technology trade groups, NetChoice and the Computer and Communications Industry Association, filed suit for the initial lawsuit challenging the law, arguing that it violated the platform's First Amendment rights and editorial discretion of their platforms. NetChoice and CCIA have said that if allowed to take effect, H.B. 20 would require platforms to host racist propaganda, foreign government disinformation and medical misinformation.

The judges of the Lousiana-based Fifth Circuit Court of Appeals disagreed. Ronald Reagan appointee Circuit Judge Edith Jones, Donald Trump appointee Andrew Oldham and George W. Bush appointee Leslie Southwick found that the social media companies wrongfully interpreted their own corporate “right to muzzle speech.”

“We reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” Oldham wrote in his 90-page opinion. 

Penning a striking critique of the trade organizations' arguments, Oldham believed that service providers such as cell phone companies, banks and email providers would be permitted to cancel an individual’s accounts based on their political affiliation if the plaintiff's arguments are permitted. Moreover, arguing against NetChoice and CCIA’s point of view, the judge also perceived that social media platforms could in bad faith market themselves as a platform for free speech while censoring viewpoints it disagrees with.

“We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” wrote Oldham. “The Platforms are not newspapers. Their censorship is not speech. They’re not entitled to pre-enforcement facial relief. And HB 20 is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way.” 

Judges Jones and Southwick concurred with Oldham and his perspective that the law is not blatantly unconstitutional and that an assertion of such is likely to fail. However, Judge Southwick dissented from the majority finding that the moderation social media platforms do to content that is posted on their sites is similar to how newspapers curated content. 

Judge Southwick wrote that provisions of the law that bar social media platforms from removing content presents an infringement on platforms' First Amendment right to editorial discretion and content curation.

“When the social media platforms who are in the business of speech make decisions about which speech is permitted, featured, promoted, boosted, monetized, and more, they are engaging in activity to which First Amendment protection attaches,” wrote Southwick. “Balance and fairness certainly would be preferable, but the First Amendment does not require it.” 

Texas Attorney General Ken Paxton hailed the court's decision as a victory for the Constitution. In a post to Twitter, the Republican said "big tech cannot censor the political voices of any Texan!"

In a press release, NetChoice vice president and general counsel, Carl Szabo, said that it was disappointed in the Fifth Circuit’s ruling but believed that the issue will be resolved by the U.S. Supreme Court.

“We remain convinced that when the U.S. Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms, and apps,” said Szabo.

He was not alone in his hope that the trade organization and social media platforms will get a more preferable outcome on appeal to the high court. Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University, called the Fifth Circuit’s ruling unpersuasive in a statement.

“The First Amendment questions presented by the Texas statute can’t be answered simply by recasting the platforms’ editorial decisions as censorship,” said Wilkens. “We hope and expect that the Supreme Court will stay and ultimately vacate this ruling.”

If the court were to take the issue up it would be for the second time they weigh the constitutionality of H.B. 20. Earlier this year, the Supreme Court in a 5-4 decision vacated a stay, issued by the Fifth Circuit, that would have allowed the law to take effect while the case worked its way through the courts.

Groups against the law appear to be holing out hope that upon the case arriving back before the Supreme Court, the justices may rule similarly, delivering a big win for social media platforms. 

House Bill 20 was seen in large part as pushback against social media platforms after former president Donald Trump was permanently banned from sites such as Twitter and Facebook for his involvement in the Jan. 6 attack on the U.S. Capitol. Conservatives in the Texas legislature have decried that many platforms have a liberal bias and often censor speech from Republicans.

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