On September 16, 2022, a federal appeals court overturned a lower court ruling that blocked a highly controversial Texas law prohibiting tech companies from moderating content based on point of view.
In September 2021, Texas Governor Greg Abbott signed into law Bill HB20, saying it would end “a dangerous move by social media companies to silence conservative views and ideas.” Under this law, “[a] the social media platform may not censor a user, a user’s expression, or a user’s ability to receive another person’s expression based on: (1) the view of the user or another person; (2) the point of view represented in the User’s Expression or another person’s Expression; or (3) a user’s geographic location in that state or any part of that state. The law defines “censorship” as “blocking, prohibiting, deleting, deplatforming, demonetizing, de-boosting, restricting, denying equal access or visibility, or otherwise discriminating against expression.”
The Texas law has been heavily criticized for preventing tech companies from regulating hate speech, abuse and misinformation on their own platforms, and forcing them to allow views and content they may not want. not be associated with their business. Additionally, enforcement can have other consequences, such as making spam filters illegal because they are used by tech companies to “block” political speech.
The Texas legislature excluded conservative social media services Parler and Gab from the new law, limiting it to services that have 50 million or more users and rejecting any attempt to lower that threshold.
On December 1, 2021, a federal district judge in Texas blocked the law, finding that it “forces social media platforms to disseminate objectionable content and impermissibly restricts their editorial discretion” under the First Amendment. On May 11, 2022, a three-judge panel of the Fifth Circuit Court of Appeals stayed the district court’s order, allowing the law to take effect while the case continued in district court. The decision was not unanimous and did not include the judges’ reasoning. That decision was appealed to the Supreme Court, which issued a ruling on May 30, 2022 that did not directly address the issue, but reversed the Fifth Circuit’s May 11 order and blocked the law enforcement pending resolution of the district court case.
Now that the Court of Appeal has again allowed the law to go forward, it will almost certainly be appealed to the Supreme Court again. In addition, parties challenging the law may first request a hearing before all judges of the Fifth Circuit Court of Appeals. Either way, the dispute over Texas law is far from resolved.