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A federal appeals court on Wednesday paused enforcement of a Texas law that restricted the ability of social media outlets to censor user content, pending review by the U.S. Supreme Court.
Wednesday’s order by the 5th U.S. Circuit Court of Appeals stayed the mandate issued last month, which upheld the law restricting the ability of Facebook, Twitter and YouTube to moderate content on their platforms.
Texas House Bill 20 (HB 20), which relates “to censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages,” passed on Sept. 9, 2021, and was set to take effect on Dec. 2, 2021.
According to Politico, HB 20 “would allow both the state of Texas and individual Texans to sue companies if they ‘censor’ an individual based on their viewpoints or their geographic location by banning them or blocking, removing or otherwise discriminating against their posts.”
“HB 20 aims to expose social media platforms including Meta, YouTube and Twitter to new private lawsuits, as well as suits by the state’s attorney general, over the companies’ decisions to remove or reduce the visibility of user content they deem objectionable,” CNN reported Wednesday.
The law would apply to social media platforms with at least 50 million active users, with “censorship” defined as blocking, removing or demonetizing content.
Tech companies challenged HB 20 on First Amendment grounds, claiming it violates their right to control the speech that appears on their platforms, and further arguing that “the law would prevent them from removing hate speech, political disinformation, violent videos, and other harmful content.”
The entities in question, including NetChoice and the nonprofit Computer and Communications Industry Association (CCIA), do not appear to have defined what constitutes “hate speech, political disinformation, violent videos” or “other harmful content,” from their point of view.
When HB 20 was passed in September 2021, Texas Gov. Greg Abbott said, “It is now law that conservative viewpoints in Texas cannot be banned on social media.”
Conservative politicians and organizations have long argued that their viewpoints are disproportionately targeted for censorship by social media platforms.
NetChoice describes itself as a “coalition of trade associations, eCommerce businesses and online consumers” that work “to make the Internet safe for free enterprise and free expression,” while the CCIA claims “to promote open markets, open systems, and open networks in the computer and telecommunications industry.”
According to CNN, the two groups will ask the Supreme Court to issue a ruling on HB 20, and the State of Texas did not oppose their motion for a stay.
CNN also described the law as “a challenge to decades of First Amendment precedent, which holds the government may not compel private entities to host speech.”
Several civil rights organizations came out against HB 20 and called on the Supreme Court to block it. According to The Guardian, these groups include the NAACP, the Anti-Defamation League and the Chamber of Progress.
Adam Kovacevich, CEO of Chamber of Progress, claimed the law would “force social media to host racist, hateful and extremist posts.”
Mary Holland, president and general counsel of Children’s Health Defense (CHD), took a different position, criticizing social media platforms for their practices, which she said pose a “grave risk” for democracy:
“The unchecked power of social media behemoths like Facebook, Twitter and Google to serve as proxies for government to censor and propagandize puts democracy at grave risk.
“I look forward to the Supreme Court resolving the issues raised in this 5th Circuit case.”
A long and winding legal battle
A circuitous set of legal challenges and appeals followed the passage of HB 20 in 2021.
The law was initially barred from being enforced on Dec. 1, 2021, just one day before it was slated to take effect. At that time, U.S. District Judge Robert Pitman granted a preliminary injunction to NetChoice and the CCIA, preventing the State of Texas from implementing the law.
On May 11, 2022, following an appeal by the State of Texas, the 5th U.S. Circuit Court of Appeals reversed Judge Pitman’s decision in a one-sentence order lifting the injunction.
However, on May 31, the U.S. Supreme Court voted 5-4 to vacate the stay issued by the 5th Circuit, granting a new stay requested by the industry groups and returning the case to the appeals court to further access the legal challenge to the Texas law.
In an unusual alignment, three conservative justices (Samuel Alito, Neil Gorsuch and Clarence Thomas), along with liberal Justice Elena Kagan, dissented with the majority.
The majority did not present an explanation supporting its ruling. The other two conservative justices, Amy Coney Barrett and Brett Kavanaugh, joined the liberal majority.
Justice Alito submitted a six-page dissent, arguing that Pitman’s original injunction should not be reinstated unless the technology groups challenging Texas’ law could show that, under existing law, they would be likely to prevail on the merits of their legal challenge.
The likelihood of this happening “is quite unclear,” according to Justice Alito, because both the law and business models pertaining to social media platforms are “novel.”
Responding at the time to the Supreme Court’s ruling, Texas Attorney General Ken Paxton argued that the state’s law doesn’t regulate speech and, therefore, does not violate the First Amendment. Instead, he said, the law pertains to conduct, and treating social media users on an equal footing.
He added that Texas also has the right to regulate social media platforms because they are “common carriers,” described by SCOTUSblog as “a legal term for businesses that transport people, goods, or services and cannot pick and choose among their customers.”
The Communications Act of 1934, for instance, classifies telephone companies as “common carriers” and requires those companies to make their services available to the public at affordable rates and regardless of viewpoint or other factors, such as geographic location.
The 5th Circuit on Sept. 16 again reversed the Supreme Court’s May 31 ruling, finding that Texas’ HB 20 law is constitutional, but it delayed its enforcement.
Supreme Court showdown looms
The 5th Circuit’s most recent decision pertaining to Texas law HB 20 comes into conflict with another appeals court ruling regarding a similar law passed in Florida.
Florida law SB 7072 (Senate Bill 7072) governing social media platforms was to take effect on July 1, 2021. That law also seeks to regulate the content moderation policies of social media platforms and bars them from banning users based on their political ideology.
Both CNN and Politico reported that the two contradictory appeals court rulings make it more likely that the Supreme Court will ultimately choose to rule on the matter.
Speaking to Politico in May, Willy Jay, head of the Supreme Court and appellate litigation practice at the Goodwin Law Firm, said that because of the disagreement between the two appeals courts, this case “really could be a case the Supreme Court might review on the merits.”
According to W. Scott McCollough, an Austin-based internet and telecommunications lawyer who represents online publications such as The Babylon Bee and Not the Bee — that, in his words, “don’t like censorship” — the Texas and Florida cases have significant constitutional ramifications.
McCollough told The Defender:
“A lot of times policy becomes law. The court tries to convey that it’s not the policymaker. But when it comes to constitutional questions, policy is always important, and here the ultimate question is what policy should guide the way we look at the First Amendment. What is the end we want to obtain? What is it we want to protect?
“As far as I’m concerned, it is far more important to protect the right for the people in our politic, the group of folks who want to speak, to have the ability to do that, using the medium that is predominant, and here it is social media.”
McCollough agreed with the prevailing view that the two conflicting appeals court decisions are likely to lead the Supreme Court to accept the Texas and Florida cases, either separately or as a single consolidated case.
He told The Defender “there’s just a very stark difference” in how the two appeals courts examined their respective cases. According to McCollough:
“The question is whether these platforms do or should have the ability to censor these other speakers.
“The 5th Circuit did not really accept the proposition that the platforms are the speakers, when it comes to the comments or other posts that they host. They’re not speaking when they just put something on their platform.
“The 11th Circuit, on the other hand, looked at the First Amendment question … almost solely as the rights of these private companies, and it took the position that the decision not to post something is itself speech and is therefore protected.”
“You will find that the 11th Circuit and 5th Circuit each chose different model decisions, or precedent.
“The 11th Circuit came up with the Supreme Court cases that dealt with publisher and editorial discretion. They thought those were the guiding cases … whereas the 5th Circuit looked at other cases about neutral hosts, and it thought those were the [guiding] cases.”
According to McCollough, “The 5th Circuit is very much more concerned with the consumer’s, or user’s, speech, and recognized — I think properly — that just because the platform hosts it, that the hosting itself is not speech, nor is any effort or decision not to post information or to take down information.”
He also noted that while the Supreme Court has not yet decided whether or not it will accept the Florida case, it was likely waiting for the outcome of the Texas case before proceeding with any action, and indicated that the publications he represents may end up “participating in some fashion.”
More social media censorship cases pending
These two state laws are not the only cases related to social media censorship that are before the Supreme Court.
Earlier this month, the Supreme Court agreed to hear two cases that specifically relate to Section 230 of the Communications Decency Act, passed in 1996.
According to CNN, this legal provision “shield[s] tech companies” from most content-moderation lawsuits, on the basis that they are not legally considered “publishers.”
One of the cases before the Supreme Court, Gonzalez v. Google, looks at whether the recommendation algorithms employed by tech platforms are protected under Section 230.
According to CNN, this case “opens up fresh risks for platforms including Google, Meta and Twitter,” adding that “An eventual ruling against Google could expose major parts of the tech giant’s business, not to mention other tech companies that use automatic recommendation engines, to new lawsuits.”
Slate, in turn, described Gonzalez v. Google as the case that “could decide the fate of the modern internet.”
The other case, Twitter v. Taamneh, looks at whether such platforms can be sued for allegedly aiding and abetting acts of terrorism by hosting user content that expresses support for terrorist groups and the acts they have committed.
According to CNN, “A ruling against Twitter could mean that tech platforms may not cite Section 230 to avoid lawsuits alleging violations of the U.S. Anti-Terrorism Act, effectively circumscribing the liability shield.”
Separately, CNN reported that justices such as Alito and Thomas “have explicitly cited the role and power of social media platforms as reasons the Court should step in,” including in the Texas and Florida censorship law cases.
Another pending legal case related to social media censorship is CHD’s lawsuit against Facebook and its “fact checkers.”
The lawsuit, filed in August 2020, argues that Facebook effectively operates as a “state actor” on behalf of the federal government and that it engaged in false advertising and racketeering.
In June 2021, the U.S. District Court for the Northern District of California dismissed the suit. However, according to Holland, the case has been appealed.
Holland told The Defender:
“CHD sued Facebook, Mark Zuckerberg and fact-checkers in California federal court back in August 2020 for precisely these issues; we still await a decision from the Ninth Circuit Court of Appeals.
“The current status quo, permitting vast censorship of so-called misinformation, that is in fact simply speech that strays from the government narrative, is untenable.”