A federal appeals court in Texas has issued a ruling that effectively enables residents of Texas, or the Texas Attorney General’s Office, to sue Facebook, Twitter, YouTube, or other large social media networks for moderating content based on “the viewpoint of the user or another person.”
HB20, “Relating to censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages,” says social media platforms with more than 50 million monthly active users “may not censor a user, a user’s expressions, or a user’s ability to receive the expression of another person,” based on a person’s point of view or geographic location. It was passed in September 2021 but blocked by a federal court a few months later, on the grounds that the law is likely to violate the First Amendment, which protects the rights of online platforms to editorial discretion.
The Fifth Circuit Court of Appeals stayed that injunction, however, meaning that the law can immediately go into effect. The hearing, according to a Protocol report, was a mess: One judge insisted that Twitter is not a website but an “internet provider,” while another was concerned that if Twitter and Facebook prevailed, phone companies would be able to disconnect telephone calls if they heard speech they don’t like.
There was also confusion about the difference between internet service providers and “interactive computer services,” a sort of catch-all term for companies including social media platforms that are broadly protected from legal responsibility for content posted by their users. They’re also explicitly allowed to moderate that content as they see fit.
(Telephone companies, for the record, are defined as “common carriers” in the US, which means they’re essentially just pipelines carrying data, irrespective of content, and are legally not allowed to discriminate or restrict access based on the content of calls. Internet providers were briefly designated common carriers as well, until the FCC opted to kill net neutrality in 2017.)
No reason for the decision, which you can read in full here, was given: It says simply, “It is ordered that appellant’s opposed motion to stay preliminary injunction pending appeal is granted.” But with the injunction lifted and the law now in force, it’s unclear how social media platforms will proceed. As CNN explains, stripping out all algorithms is one approach, although even that could arguably be used to bring a suit against Facebook or Twitter by users who believe they’re being “silenced” because their posts are being buried under mountains of spam. Hate speech, porn, and disinformation will also almost certainly proliferate; according to the Knight First Amendment Institute, the purported anti-censorship law actually opens the door to significantly increased government intrusion into online speech.
“This decision will have terrible consequences for speech online,” Scott Wilkens, senior staff attorney with the Knight First Amendment Institute, said in a statement. “As we said in a brief filed with the Fifth Circuit a few weeks ago, Texas’s law violates the First Amendment because it compels social media companies to publish speech they don’t want to publish.
“Worse, the theory of the First Amendment that Texas is advancing in this case would give government broad power to censor and distort public discourse. The Texas law’s transparency provisions present a more difficult constitutional question, but the law’s must-carry provision is plainly unconstitutional and should be struck down.”
“As we said in a brief filed with the Fifth Circuit a few weeks ago, Texas’s law violates the First Amendment because it compels social media companies to publish speech they don’t want to publish,” says @scottwilkens. @pauldebenedetto @HoustonPubMedia https://t.co/lCrJlPV4fPMay 13, 2022
The litigation is ongoing and social media companies are expected to file an emergency appeal, but it’s possible the dispute won’t be resolved unless and until it ends up before the US Supreme Court. What would happen at that point is impossible to say, but as CNN notes, the apparent willingness to overturn Roe v Wade suggests that some aspects of the First Amendment, particularly with regard to online platforms, could be open to reinterpretation as well, with potentially far-reaching consequences.
Facebook, Twitter, and YouTube are the focal points of the new law, but it applies to every social network with a monthly active user count in excess of 50 million, which includes more gamer-focused platforms like Twitch and Discord. I’ve reached out to both for comment and will update if I receive a reply.