Fifth Circuit Lets Texas Ban Content Moderation on Social Media Platforms (For Now)

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Fifth Circuit Lets Texas Ban Content Moderation on Social Media Platforms (For Now). This week, we call attention to the Fifth Circuit’s 2-1 panel decision to stay pending appeal of the district court’s preliminary injunction against enforcement of HB 20, Texas’s controversial social media law.

HB 20 and Free Speech.  In recent years many conservative politicians have taken issue with Facebook, Twitter, and other social media giants, contending that these “Big Tech” companies have moderated the speech carried over their platforms in ways that disadvantage right-wing speakers. By statute, Texas and Florida have both declared social media companies with 50 million or more monthly users to be common carriers – effectively requiring them to publish the postings of all users – and have provided their users and the state Attorneys General public and private rights of action to sue over claimed “censorship or other interference” with their postings, including among other things “block[ing],” “remov[ng],” or “deplatform[ing]” users or content expressing a user’s “viewpoint.” 

You can read the text of the Texas bill, HB 20, by clicking on the following link:

https://capitol.texas.gov/tlodocs/872/billtext/pdf/HB00020F.pdf#navpanes=0

In December 2021, the federal court in Austin enjoined the enforcement of HB 20.  The court based its ruling on first amendment grounds, reasoning that when an entity exercises editorial discretion in what to publish (as the large social media platforms do), the government cannot obligate it to publish more; and that compelling it to do so (as HB 20 does) would violate the publisher’s own first amendment rights.  A federal district court in Florida reached the same results and similarly enjoined enforcement of that state’s “social media censorship” law, a decision now on appeal to the Eleventh Circuit. 

You can read a copy of the Texas district court’s opinion here:

https://www.documentcloud.org/documents/21124382-ruling-in-netchoice-v-paxton

A split panel of the Fifth Circuit has now stayed the trial court’s preliminary injunction, effectively allowing actions under HB 20 to proceed while the appeal runs its course.  No reasons were given. You can read the Fifth Circuit’s order here (it won’t take you long):

https://netchoice.org/wp-content/uploads/2022/05/2022-05-11-Court-Order-dckt-.pdf

As of Friday, May 13, 2022, two groups representing technology companies affected by this ruling have filed an emergency application with the Supreme Court. Initially, the application will be presented to Justice Samuel A. Alito Jr. who is assigned all such applications coming from Fifth Circuit.

We have plenty to say about the big social media companies, and rarely do we say it in their defense.  But in a digital environment barely able to keep the spam, porn, phishing, and endless crime at bay – and now awash in hate speech, deliberate disinformation, bots, and much worse, we say that HB 20 and its Floridian counterpart are profound mistakes, which confound both technology and law and which have been compounded this week by two (2) federal judges whose interim decision may affect millions of people. 

In our view, one of the core problems with the big social media platforms isn’t that they moderate their content too much.  It’s that they moderate their platforms too mechanically and not thoughtfully enough. The practical reality is that forcing social-media companies to carry even the most offensive speech will quickly contaminate their platforms, turning them into places that many will not wish to visit.  The Internet already has a very dark Dark Web. Why should our laws expand it?

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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.