By Joseph Segar, Staff Writer
On September 16, 2022 the Fifth U.S. Circuit Court of Appeals upheld a Texas law that regulates large social media corporations’ ability to censor content on their platforms. [1] The law, HB 20, was passed in Texas last year but was blocked until now by injunction from the Supreme Court.[2] As a result of the new ruling, HB 20 is scheduled to go into effect pending appeal to the Supreme Court.[3]
The law prohibits a social media platform with over 50 million accounts from censoring a user, a user’s expression, or a user’s ability to receive expression from another person without specified due process.[4] In other words, social media platforms need to follow HB 20’s specific guidelines before they do things like delete a person’s account or their content.
A violation of HB 20 censorship guidelines allows a user to sue for declaratory and injunctive relief and they may recover costs and attorney’s fees if successful.[5] The declaratory and injunctive relief would restore the censored content to the platform.[6] A party suing a social media platform for violating this law would be unable to recover any other type of damages.[7]
The Court’s reasoning in part relied on the comparison of social media platforms to “common carriers” like telephone companies that play a huge role in fostering communication between individuals.[8] Using this comparison, it reasoned that “the State can regulate conduct in a way that requires private entities to host, transmit, or otherwise facilitate speech.”[9] For social media platforms, that could mean mandating a specific process for censoring content or removing user accounts to preserve a fair exchange of communication.
The Court’s ruling was met with praise and criticism. Those who support the holding view it as an opportunity for diverse political viewpoints to be freely shared across social media. The opening of the opinion written by Judge Andrew Oldham echoes this sentiment. He writes, “today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”[10]
Those who criticize the holding view it as an opportunity for hate speech to spread unfettered across platforms. Matt Schruers is the president of the Computer and Communications Industry Association, the company that represented Google, Facebook, and Twitter in the injunction suit last year.[11] In response to the holding he said, “We strongly disagree with the court’s decision. Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk.”[12]
Regardless of political leaning, the law will impact how social medial platforms operate in the state of Texas. Alan Z. Rozenshtein, an associate professor of law at University of Minnesota Law School, offered two directions that platforms could follow when the new law goes into effect. [13] On one hand, platforms could operate as normal and just comply with the law in the state of Texas. Alternatively, platforms could “geoblock Texas and its users in the entirety in order to avoid Texas’s jurisdiction.”[14] It is too soon to tell what platforms will do but the holding can potentially change the status quo.
Another interesting fact surrounding this holding is that the Eleventh Circuit, under a similar set of facts, issued an opposite ruling last year.[15] The Court ruled that the Florida law regulating social media corporations’ ability to moderate their platforms violated their First Amendment right.[16] Soon either the Fifth Circuit’s full panel of judges or the Supreme Court will review this case to decide whether the holding will stand, and it is likely that the Supreme Court may weigh in since there are now two circuit court opinions with similar facts but opposite holdings.
[1] https://www.npr.org/2022/09/16/1123620521/fifth-circuit-texas-social-media-ruling
[2] https://techcrunch.com/2022/05/31/texas-social-media-law-supreme-court-hb20/
[3] https://www.politico.com/news/2022/09/16/5th-circuit-upholds-texas-law-forbidding-social-media-censorship-again-00057316
[4] NetChoice, L.L.C. v. Paxton, 2022 WL 4285917, *2 (5th Cir. 2022)
[5] Id.
[6] Id.
[7] Id.
[8] Id. at 1.
[9] Id. at *9.
[10] Id. at *1.
[11] https://www.politico.com/news/2022/09/16/5th-circuit-upholds-texas-law-forbidding-social-media-censorship-again-00057316
[12] Id.
[13] https://www.lawfareblog.com/fifth-circuits-social-media-decision-dangerous-example-first-amendment-absolutism
[14] Id.
[15] https://www.mtsu.edu/first-amendment/post/2994/11th-circuit-fla-law-on-social-media-unconstitutional
[16] Id.
