Texas law banning platforms from social media moderation challenged in lawsuit

Tech trade groups argue prohibition on moderation is unconstitutional


Two IT trade groups on Wednesday challenged the constitutionality of Texas' new social media law, arguing that it compels companies to host speech they disagree with in violation of their First Amendment rights.

The Texas law, HB 20, was signed by Governor Greg Abbott on September 9, 2021 and takes effect on December 9, 2021. It prohibits large social media platforms from removing content posted by users based on any viewpoint, or the user's location in Texas, unless the content is unlawful.

The law puts politically manipulative misinformation on equal footing with good-faith opinion and verifiable facts. If you choose to say that vaccines are poison or that racial superiority is proven, HB 20 will prevent major social media platforms from interfering.

The Computer & Communications Industry Association (CCIA) and NetChoice, a business group focused on free speech, have filed a lawsuit [PDF] in the Western District of Texas seeking an injunction to prevent the law from being enforced and a declaration that that law violates the US Constitution.

“By tying digital services’ hands, this unconstitutional law will put Texans at greater risk of exposure to disinformation, propaganda, and extremism," said CCIA President Matt Schruers in a statement. "There are few First Amendment fouls clearer than regulating based on viewpoint."

Schruers said the law, by limiting free speech rights of social media firms, would force companies to treat Nazi propaganda, white supremacist theories, and anti-American rhetoric no differently than any other speech.

CCIA and NetChoice in May filed a similar lawsuit against similar legislation (FL SB 7072) that bans the policing of political speech, with exceptions for Florida theme park owners Disney and Comcast. In June, a federal judge blocked the Florida law.

Upon signing HB 20 earlier this month, Texas Governor Abbott justified his support by claiming "there is a dangerous movement by social media companies to silence conservative viewpoints and ideas."

Someone doth protest too much

A study [PDF] published in February by the NYU Stern Center for Business and Human Rights earlier this year found such claims, common in conservative media, to be false. In fact, it found the opposite, that social media sites amplify right leaning voices.

Another NYU-affiliated study in March found that, on average, far right-wing misinformation on Facebook got more engagement that centrist or left-wing misinformation, both of which were penalized while far-right content wasn't.

In a blog post, Santa Clara University law professor Eric Goldman said like the blocked Florida law, HB 20 is "brazenly unconstitutional."

"Like other #MAGA-inspired bills, Texas’ law was never intended to survive critical scrutiny," said Goldman. "It is purely performative – to show constituents that the legislature hates 'Big Tech,' even if the law’s consequences will harm, not benefit, their constituents."

Goldman dissects HB 20 at length but is clearly pained by the need to do so because the law so clearly violates the US Constitution and because its provisions are terrible policy that will harm internet users in Texas and elsewhere if allowed to stand.

Pointing to the law's ban on spam blocking and its establishment of a private right to action that allows blocked spammers to sue service providers, his exasperation triggers a full caps-lock outburst.

"THIS IS THE STUPIDEST POSSIBLE POLICY THE LEGISLATURE COULD ADOPT, AND TEXAS RESIDENTS BOMBARDED BY SPAM WILL BE SHOCKED THAT THEIR LEGISLATURE SCREWED THEM OVER," he fumed.

Goldman manages to keep it together for the remainder of his post and concludes while everyone assumes this law will be struck down, those calling for government-imposed speech restrictions on social media platforms should look at the results. ®

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