By Alexa Glista, Features Editor
On September 9, 2021, House Bill 20 was signed into Texas law.[1] HB 20 forbids social media firms, which are defined as social media platforms that in one calendar month have more than 50 million active users in the United States, from punishing or putting restrictive measures (removing, demonetizing, banning, etc.) on content due to “the viewpoint of the user or another person.”[2] The law grants the Texas Attorney General the ability to enforce moderation requirements by bringing suits against nonconforming social media firms.[3] Similarly, HB 20 allows Texas residents a private right of action, by giving them the ability to sue for declaratory or injunctive relief against social media platforms for their moderation decisions.[4] The Bill also requires social media firms to release transparency reports about how they promote and moderate content.[5]
Many technology and social media-based companies are in opposition to the law.[6] On September 22, 2021, NetChoice, which represents big tech social media firms, and the Computer and Communications Industry Association (CCIA) sued the State of Texas to enjoin and invalidate HB 20, arguing that HB 20 is unconstitutional as it is challenging the First Amendment precedent that the government may not compel private entities to host speech by preventing social media firms from removing hate speech and extreme expression, in the case of NetChoice v. Paxton.[7] NetChoice and CCIA contend that the law is preempted by Section 230 of the Communications Decency Act (CDA) and violates the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Full Faith and Credit Clause, and the Commerce Clause.[8]
The district court granted a preliminary injunction on HB 20, as they found that the barring of certain moderation actions authorized editorial discretion protected by the First Amendment.[9] Texas appealed this decision, and the Fifth Circuit issued a single-sentence order granting a stay of the injunction. NetChoice and CCIA promptly petitioned the Supreme Court to vacate the stay, arguing the order was unreasoned and did not provide them “careful review and meaningful decision,” as HB 20 was still constitutionality being litigated.[10] In May 2022, the Supreme Court vacated the decision in a 5-4 vote.[11]
In the interim, the U.S. Court of Appeals for the Eleventh Circuit was deciding on the case of NetChoice v. Moody.[12] In this case NetChoice and CCIA also sued the state of Florida to challenge analogous legislation, SB 7072, on similar constitutional grounds.[13] The Eleventh Circuit found in favor of NetChoice and CCIA by ruling that the Florida law was in violation of the First Amendment since the law represented government-compelled speech.[14] However, on September 16, 2022, the Fifth Circuit decided differently and released an opinion that was directly averse to the Eleventh Circuit’s decision in NetChoice v. Moody.[15] The Court upheld the comparable Texas statute on the basis of “viewpoint” and caused a dramatic circuit split.[16]
On September 21, Florida filed a petition for certiorari to the Supreme Court to overturn the Eleventh Circuit’s decision in NetChoice v. Moody.[17] In a cross-petition, NetChoice and CCIA agreed with the state that the matter deserves the Supreme Court’s attention.[18] Simultaneously, NetChoice and CCIA requested a stay on the Paxton ruling in regard to the circuit split between the Fifth and Eleventh circuits, and the Moody petition before the Supreme Court.[19] The Fifth Circuit granted the stay and suspended enforcement of HB 20, in order to have the Supreme Court review the case.[20]
NetChoice and CCIA expect the Supreme Court will find in their favor because, in their view, the “clear-cut First Amendment issues” deprive social media platforms the right to regulate and remove offensive and dangerous content.[21]Texas Attorney General Paxton contends that the enforcement of HB 20 is to hold big tech accountable.[22] “The system cannot work if the public lacks access to the means by which citizens may engage with each other. Censorship by social-media companies thus poses a very real threat to effective self-governance,” Attorney General Paxton said. Attorney General Paxton continued, “For that reason, States have passed, or are considering, laws to address the problem. Those state laws implicate the question of whether, and in what ways, the government may regulate or discourage private censorship.”[23]
Besides Texas and Florida, New York and California have also enacted social media content moderation laws. [24]However, New York’s S4511A and California’s AB 587 have yet to face any judicial intervention.[25] It is clear that there is much murkiness surrounding state laws for social media content moderation and is therefore important to understand the gradient of these four laws.[26] California’s law appears to be on the less-burdensome end of the spectrum, while Florida’s law is on the more-burdensome end, leaving Texas and New York in the middle.[27]
All four state laws require social media platforms to publish transparency reports, and California and New York require mechanisms for users reporting of content. California does not explicitly prohibit certain types of content; however, there is argument that its requirement that specific definitions of “hate speech or racism” must be specified and published has a comparable effect as New York’s ban on content that “vilifies.”[28] New York, Texas and Florida’s laws all require social media platforms to prohibit or host speech that may go against their terms of service. It is because of this that California’s law may be the only to survive any challenges to state content moderation, as it is not requiring to host or ban third-party speech.[29]
The Supreme Court has recently accepted the petitions of certiorari on a few cases with regard to the regulation of social media firms.[30] Two of these cases have the potential to narrow the scope of Section 230 of the CDA.[31] It is unclear how the Court will decide on these cases. Furthermore, many states are, “waiting in the wings to enact copycat laws in other jurisdictions”.[32] It is obvious that the Supreme Court will have to intervene and answer several questions about the disputes over digital content and speech moderation rights.[33] How the Supreme Court decides could greatly affect how social media platforms conduct their businesses in their attempts to quash harmful speech, and how other states go about enacting legislation that regulates these platforms.[34]
[1] Reed Smith LLP, Pause: Texas Social Media Law on Hold as it heads to Supreme Court for Review, LEXOLOGY (Oct. 18, 2022) https://www.lexology.com/library/detail.aspx?g=217b9447-6ca0-4888-9313-ebb571d57c6e
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Steve DelBianco, NetChoice and CCIA sue a second state in the wake of Florida’s enjoined Law, SB 7072, NEXCHOICE (Sep. 22, 2021) https://netchoice.org/netchoice-and-ccia-sue-state-of-texas-for-legislation-hb-20-that-flagrantly-violates-texan-free-speech/
[8]Reed Smith LLP, Pause: Texas Social Media Law on Hold as it heads to Supreme Court for Review, LEXOLOGY (Oct. 18, 2022) https://www.lexology.com/library/detail.aspx?g=217b9447-6ca0-4888-9313-ebb571d57c6e
[9] https://www.jdsupra.com/legalnews/california-s-ab-587-what-you-need-to-4477665/
[10] Id.
[11] Id.
[12] Steve DelBianco, NetChoice and CCIA sue a second state in the wake of Florida’s enjoined Law, SB 7072, NEXCHOICE (Sep. 22, 2021) https://netchoice.org/netchoice-and-ccia-sue-state-of-texas-for-legislation-hb-20-that-flagrantly-violates-texan-free-speech/
[13] Id.
[14] Shiva Stella, Eleventh Circuit Finds Florida Social Media Law Unconstitutional, PUBLIC KNOWLEDGE (May 24, 2022) https://publicknowledge.org/eleventh-circuit-finds-florida-social-media-law-unconstitutional/
[15] Grayson Clary, Florida and Silicon Valley agree: Justices, hear this case, REPORTRS COMMITTEE (Oct. 31, 2022) https://www.rcfp.org/netchoice-moody-scotus-petitions/
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Reed Smith LLP, Pause: Texas Social Media Law on Hold as it heads to Supreme Court for Review, LEXOLOGY (Oct. 18, 2022) https://www.lexology.com/library/detail.aspx?g=217b9447-6ca0-4888-9313-ebb571d57c6e
[22] Ken Paxton, Paxton Stands With Florida in Fight Against Big Tech Censorship, TEXAS ATTORNEY GENERAL (Oct. 28, 2022) https://www.texasattorneygeneral.gov/news/releases/paxton-stands-florida-fight-against-big-tech-censorship
[23] Id.
[24] Baker Hostetler, California’s AB 587: What You Need to Know About Social Media Content Moderation, JDSPURA (Nov. 21, 2022) https://www.jdsupra.com/legalnews/california-s-ab-587-what-you-need-to-4477665/
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Baker Hostetler, California’s AB 587: What You Need to Know About Social Media Content Moderation, JDSPURA (Nov. 21, 2022) https://www.jdsupra.com/legalnews/california-s-ab-587-what-you-need-to-4477665/
[30] Reed Smith LLP, Pause: Texas Social Media Law on Hold as it heads to Supreme Court for Review, LEXOLOGY (Oct. 18, 2022) https://www.lexology.com/library/detail.aspx?g=217b9447-6ca0-4888-9313-ebb571d57c6e
[31] Id.
[32] Grayson Clary, Florida and Silicon Valley agree: Justices, hear this case, REPORTRS COMMITTEE (Oct. 31, 2022) https://www.rcfp.org/netchoice-moody-scotus-petitions/
[33] Reed Smith LLP, Pause: Texas Social Media Law on Hold as it heads to Supreme Court for Review, LEXOLOGY (Oct. 18, 2022) https://www.lexology.com/library/detail.aspx?g=217b9447-6ca0-4888-9313-ebb571d57c6e
[34] Id.
