5th Circuit Upholds Texas Law Banning Social Media ‘Censorship’ – Again

The law, HB 20, had previously been prevented from taking effect by a May 5-4 Supreme Court ruling, which granted an emergency request from technology trade groups NetChoice and the Computer and Communications Industry Association, which represent Facebook, Twitter and Google. Business groups have alleged that the Texas law violates the First Amendment rights of the companies they represent.

“Today, we reject the idea that corporations have the right to freely censor what people say,” wrote Andrew Oldham, a Donald Trump appointee who previously served as Abbott’s general counsel, in the ruling. of the 5th circuit.

In a tweetPaxton said, “I just got a MASSIVE VICTORY for the Constitution and free speech in federal court: #BigTech CANNOT censor the political voices of ANY Texan!”

NetChoice Vice President and General Counsel Carl Szabo said in a statement that his organization plans to appeal, “We remain confident that when the United States Supreme Court hears one of our cases, it will uphold the first amendment rights of websites, platforms, and apps. ”

CCIA Chairman Matt Schruers said: “We strongly disagree with the court’s decision. Forcing private companies to give equal treatment to all viewpoints on their platforms puts foreign propaganda and extremism on a par with decent internet users, and puts Americans at risk.

Netchoice and the CCIA have argued that the First Amendment protects the ability of social media platforms to curate content, much like a newspaper does.

Oldham rejected that argument, writing in the ruling, “We reject the Platforms’ attempt to extract a freewheeling right of censorship from the Constitution’s free speech guarantee. The Platforms are not newspapers. Their censorship is not a speech.

Edith Jones, a Ronald Reagan appointee who endorsed the decision largely 2-1, was even more scathing, calling NetChoice’s argument “ridiculous.”

However, Leslie Southwick, the third judge on the appeals court panel (appointed by George W. Bush), dissented, arguing that social media platforms are indeed similar to newspapers. “The First Amendment, however, is what protects conservation, moderation, or whatever we call the platforms’ interaction with what other people are trying to say. We’re in a new, very large, arena for speakers and for those who would moderate their speech. None of the precedents correspond perfectly. The majority seem assured of their approach; I hesitate. “

The Texas law, if enacted, could dramatically change the way social media companies operate by limiting their ability to police their platforms and forcing platforms to curate content that may violate their rules on social media speech. hate.

This would allow both the state of Texas and Texans to sue companies if they “censor” an individual based on their views or location by banning or blocking, deleting or by discriminating its publications.

CCIA spokeswoman Heather Greenfied said the organization is “weighing the options”.

These options include filing for a new hearing in the 5th Circuit or a new appeal to the Supreme Court.

The 5th Circuit’s decision contradicts an opinion issued in May by the 11th Circuit that key provisions of a similar social media law in Florida violate the First Amendment.

These conflicting rulings could be the cause of another appeal to the Supreme Court, whose May ruling did not touch the merits of the underlying case in Texas.

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