A Texas federal appeals court has issued a ruling that effectively allows Texas residents, or the Texas Attorney General’s office, to sue Facebook, Twitter, YouTube, or other major social media networks for content moderation based on “the point of view of the user or another person.”
HB20 (opens in a new tab)“With respect to censorship or certain other interference with digital expression, including expression on social media platforms or through electronic messages,” says social media platforms with more than 50 million followers. ‘monthly active users’ cannot censor a user, a user’s expressions, or a user’s ability to receive another person’s expression”, depending on viewpoint or location geographical location of a person. It was adopted in September 2021 but blocked (opens in a new tab) 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 the law can go into effect immediately. The hearing, according to a Protocol (opens in a new tab) report, was a waste: one judge insisted that Twitter is not a website but an “internet service provider”, while another feared that if Twitter and Facebook won, the companies phone would be able to disconnect phone calls if they hear speech they don’t hear Like.
There was also confusion about the difference between internet service providers and “interactive computing services”, a sort of catch-all term for businesses, including social media platforms which are largely shielded from legal liability for content posted by their users. They are also explicitly allowed to moderate this content as they see fit.
(Telephone companies, for the record, are defined as “common carriers (opens in a new tab)” in the United States, which means that they are essentially just pipelines carrying data, regardless of its content, and they are not legally allowed to discriminate or restrict access based on the content of Internet service providers were also briefly referred to as common carriers, until the FCC chose to kill net neutrality (opens in a new tab) in 2017.)
No reason for the decision, which you can read in full here (opens in a new tab), was pronounced: it simply says: “It is ordered that the opposing motion of the appellant to stay the preliminary injunction pending appeal be granted.” But with the injunction lifted and the law now in place, it’s unclear how social media platforms will proceed. Like CNN (opens in a new tab) explains, removing all algorithms is one approach, though it could arguably be used to sue Facebook or Twitter by users who think they’re “silent” because their posts are buried under mountains of spam. Hate speech, pornography and misinformation will also almost certainly proliferate; according to the Knight First Amendment Institute, the so-called anti-censorship law actually opens the door to significantly increased government intrusion into online speech.
“This decision will have dire consequences for online speech,” Scott Wilkens, senior counsel for the Knight First Amendment Institute, said in a statement. (opens in a new tab). “As we said in a brief filed with the Fifth Circuit a few weeks ago, Texas law violates the First Amendment because it requires social media companies to post speech they don’t want to post.
“Worse still, the First Amendment theory advanced by Texas in this case would give the government broad power to censor and distort public discourse. The transparency provisions of the Texas law pose a more difficult constitutional question, but the law’s must-carry provision is clearly unconstitutional. and must be invalidated. »
“As we said in a brief filed with the Fifth Circuit a few weeks ago, Texas law violates the First Amendment because it requires social media companies to post speech they don’t want to post,” says @scottwilkens. @pauldebenedetto @HoustonPubMedia https://t.co/lCrJlPV4fPMay 13, 2022
Litigation is ongoing and the social media companies are expected to file an emergency appeal, but the dispute may not be resolved until it ends up in the US Supreme Court. What would happen then is impossible to say, but as CNN notes, the apparent willingness to cancel Roe v Wade (opens in a new tab) suggests that some aspects of the First Amendment, particularly as it relates to online platforms, could also be reinterpreted, with potentially significant consequences.
Facebook, Twitter and YouTube are the focal points of the new law, but it applies to all social networks with monthly active users over 50 million, which includes more gamer-focused platforms like Twitch and Discord. I have reached out to both for comment and will update if I receive a response.