The Texas Law Restricting Social Media Moderation
What it is, what it isn't and what may happen next.
In September 2021 Texas passed HB 20, a law against the banning, demonetizing or otherwise restricting of social media content based on “the viewpoint of the user or another person.”
A trade associations called Netchoice sued Texas alleging the law violates the US First Amendment protection against the government abridging freedom of speech. In December, a Texas federal district court judge granted a preliminary injunction against the bill going into effect until the court case was resolved.
Texas appealed that decision to the Circuit court and it was heard by a panel of three of the 5th circuit court of appeals' judges. Wednesday the 5th circuit ruled 2-1 to grant a stay on the preliminary injunction, meaning that the law may go into effect. A lot was made of statements by the judges during deliberation. One judge said social media platforms weren't websites. Another compared social media posts to phone calls. But in the end, that doesn't bear much on the case, because the court did not rule on the merits and did not issue an opinion in support of the order. An opinion will come but not anytime soon.
HB 20 allows lawsuits by private citizens as a remedy for violations. So if a social media network with more than 50 million active US users discriminates on viewpoint, the state of Texas or any Texas resident can sue.
Here’s what it says in the law.
A social media platform 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;
-the viewpoint represented in the user ’s expression or another person ’s expression; or
-a user ’s geographic location in this state or any part of this state.
Florida has a similar law, SB 7072, but the US District Court for the Northern District of Florida granted a preliminary injunction against that law while a court case, also from NetChoice, challenges it on First Amendment grounds as well.
Despite the conflicting decisions on injunctions, the laws are seemingly opposed by legal precedent and federal statute.
In 2017 the US Supreme Court ruled 8-0 in Packingham vs. North Carolina struck down the idea of a state government putting limits on social media. A North Carolina law was passed to prohibit registered sex offenders from accessing commercial social networks. The Court ruled that the law was unconstitutional because the state was attempting to restrict lawful speech. This is the decision in which the justices referred to social networks as a "modern public town square." The opinion was written by Justice Kennedy and a concurrence was written by Justice Alito.
The Florida's judge referenced Sections 230 of the CDA when he issued the injunction against the law going into effect there. Section 230 specifically says "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable" will not cause an interactive computer service to be held liable.
In other words if a platform takes down content it finds objectionable, Section 230 protects it from being sued for making those decisions.
Netchoce had a few options for its next step.
If there was an opinion from he Texas Circuit, Netchoice could have
Netchoice could have asked for what's called an 'en banc' review of the decision, where all the judges of the 5th circuit, not just the three judge panel, review the case again. However it's not necessarily likely they'd get a different decision.
It also could have waited for the opinion and brought a "district Split" decision to the Supreme Court where two districts-- in this case Texas and Florida, have ruled in conflict with each other on a similar issue. However, the 5th circuit is notoriously slow in bringing out its opinions, so Netchoice didn’t wait.
Instead it filed an emergency application with the Supreme Court to stay the Fifth Circuit’s ruling claiming social media platforms might suffer irreperable harm from a law that might still be ruled unconstitutional. The idea is to get the Supreme Court to review the case on what's called the Shadow Docket, which means they review without oral arguments. This is done rarely in cases that might cause large disruptions if a decision is delayed. Netchoice is not asking the Supreme Court to rule on the constitutionality of HB 20 at this point, only to rule that the injunction against it should stand. In other words, asking the Supreme Court to stop the law from going into effect until the actual court cases ruling on its constitutionality can be conducted. If granted, the stay of the fifth circuit’s stay of the preliminary injunction would stop the law from going into effect.
Justice Alito, who oversees cases from the 5th circuit will decide whether to refer the case to the full court. Most experts think the law has enough impact, that the court would have a hard time denying the application. Whether the full court would support the injuncrtion or not is unknown.
And don't forget all of this is about injunctions. No matter what the Supreme Court decides now, the main cases still need to be decided. They may be appealed to the Supreme Court at some point anyway, and if the Texas case and Florida's case ultimately come to opposite decisions, the outcome would still need to be settled by the Supreme Court at oral arguments.
It’s hard to determine what the justices will do regarding wither the injunction or the full appeal that might come down the line.
Justice Thomas has previously indicated that large tech platforms with substantial market powers might be akin to common carriers and there is legal precedent for requiring common carriers not to exclude legal uses of their services. But would that mean Thomas would uphold the Texas law? And would any other justices join him? It's hard to say. Thomas joined Alito's concurrence on the case overturning the North Carolina law.
And in Manhattan Community Access Corp v Halleck, the court found that private operators of public access channels, even though they receive government funding, are not subject to the constitutional requirement not to abridge free speech. That opinion was written by Justice Kavanaugh and joined by Justices Roberts, Alito, Gorsuch and Thomas.
So both by looking at precedents, the law, and how justices have ruled in the past, these Florida and Texas laws do not look likely to stand up.
In the meantime, until the Supreme Court weighs in, it is right now it is illegal in Texas to moderate content based on the viewpoint of the poster. That applies to Yelp, Reddit, Tinder, Facebook, Twitter and more. Meaning all these platforms risk a lawsuit whenever they remove a or otherwise moderate a post.