Appeals court unleashes Texas's anti-Big-Tech content-no-moderation law

That bit in Ghostbusters when they shut off the containment unit? That, but with social networks

On Wednesday, the US Fifth Circuit Court of Appeals decided to undo a preliminary injunction that for the past few months has been blocking Texas's law prohibiting online content moderation while that legislation is being challenged.

Two judges of a three judge panel – all Republican appointees – granted Texas's motion to stay the preliminary injunction, granted last December, that suspended HB 20 amid the dispute over its constitutionality.

The law, signed by Texas Governor Greg Abbott (R) on September 9, 2021, forbids large social media platforms from moderating content based on any viewpoint, or on the user's location, unless the content is illegal. Florida enacted a similar law last May, which is also being fought in court and is currently enjoined.

Platforms won't be able to remove scammers, conspiracy theorists, terrorists, or white nationalists – and social media will be forced to turn into a sewer

Those arguing against the Texas law say the rules will make it impossible to manage large social media platforms, defined as those sites with more than 50 million monthly active users. Critics say HB 20 will prevent the removal of misinformation, depictions of violence and cruelty, pornography that isn't obscene, hate speech, or anything that could plausible be considered a "viewpoint."

"Platforms won't be able to remove scammers, conspiracy theorists, terrorists, or white nationalists – and social media will be forced to turn into a sewer," said Adam Kovacevich, CEO of the Chamber of Progress, which describes itself as a "center-left tech industry policy coalition," in a statement.

Not only that, but the law grants Texans a private right to action – the ability to file their own claims and to recover court costs if they prevail. "The law creates a vague and unworkable 'acceptable use' vs 'no viewpoint discrimination' conflict, incentivizes people to bring frivolous suits, and ensures endless litigation," wrote attorney Ken White.

HB 20 was supposed to take effect on December 9, 2021, though two tech industry trade groups – NetChoice and CCIA – sued the State of Texas on September 22, arguing that HB 20 violates the First Amendment of the US Constitution by depriving companies of their right to free speech. Federal District Court Judge Robert Pitman agreed and granted a preliminary injunction blocking the law on December 1, 2021, on First Amendment grounds.

Now that's been undone by the Fifth Circuit, and the law has gone into effect even as its lawfulness remains unsettled.

The law creates a vague and unworkable 'acceptable use' vs. 'no viewpoint discrimination' conflict, incentivizes people to bring frivolous suits, and ensures endless litigation

The two plaintiff trade organizations decried the Fifth Circuit's order.

"In an unusual and unfortunate move, a split 2-1 Fifth Circuit panel lifted the injunction without ruling on the merits and without issuing an opinion explaining the order," said Carl Szabo, general counsel of NetChoice, in a statement. "Because HB 20 is constitutionally rotten through and through, we are weighing our options and plan to appeal the order immediately."

"HB 20 is an assault on the First Amendment – and we remain confident the courts will strike it down as unconstitutional,” Szabo added.

"This unexplained order contravenes established First Amendment law," said CCIA President Matt Schruers in a statement. "No option is off the table. We will do what is necessary to ensure that the free market, not government fiat, decides what speech digital services do and do not disseminate."

Meta, parent of Facebook, Instagram, and WhatsApp; and Twitter both declined to comment.

Internet censorship and mission creep


In a scathing analysis penned last year, Eric Goldman, Santa Clara University School of Law professor, dismissed the Texas social media statute as legally unsound.

"Like other MAGA-inspired bills, Texas’ law was never intended to survive critical scrutiny," he wrote. "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 concluded, "I think the internet will be in for a shock if the courts don’t strike this down completely."

Or as White put it, "Please welcome frontal nudity to Club Penguin!" ®

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