Supreme Court urged to halt 'unconstitutional' Texas content-no-moderation law

Everyone's entitled to a viewpoint but what's your viewpoint on what exactly is and isn't a viewpoint?

A coalition of advocacy groups on Tuesday asked the US Supreme Court to block Texas' social media law HB 20 after the US Fifth Circuit Court of Appeals last week lifted a preliminary injunction that had kept it from taking effect.

The Lone Star State law, which forbids large social media platforms from moderating content that's "lawful-but-awful," as advocacy group the Center for Democracy and Technology puts it, was approved last September by Governor Greg Abbott (R). It was immediately challenged in court and the judge hearing the case imposed a preliminary injunction, preventing the legislation from being enforced, on the basis that the trade groups opposing it – NetChoice and CCIA – were likely to prevail.

But that injunction was lifted on appeal. That case continues to be litigated, but thanks to the Fifth Circuit, HB 20 can be enforced even as its constitutionality remains in dispute, hence the coalition's application [PDF] this month to the Supreme Court.

On Wednesday, Texas responded by urging [PDF] the Supremes to keep its law in place. State Attorney General Ken Paxton argued that social networks should be treated as "common carriers," and the legislation only tackles the tech giants' treatment of netizens as opposed to limiting anyone's speech.

Like a similar law passed in Florida that's also being fought in court, HB 20's purported aim in Texas is to "protect first amendment rights" against what Governor Abbott described as "a dangerous movement by social media companies to silence conservative viewpoints and ideas."

Setting aside multiple studies debunking his unsupported claim that social media sites unfairly censor conservative content, HB 20 has been widely derided by legal experts for violating the very thing its backers claim the law is protecting – the US First Amendment.

The First Amendment of the Constitution of the United States says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment limits the US government, not companies or people. Applied to the Texas Legislature, it prevents the state government from adopting rules that interfere with free speech. Yet that's just what opponents of HB 20 say Texas has done by limiting how large social companies can deal with the content people post online.

By banning large social media companies from blocking or removing content based on "the viewpoint" expressed unless it's illegal (eg obscene material), the law ensures the wide distribution of "lawful-but-awful" content, like misinformation, abusive posts, and hate speech. It might also deter the takedown of violent video like the live stream of the May 14 mass shooting in Buffalo, New York, that surfaced on Twitch and other websites.

The author of the law disputes this, noting that the law contains a provision for censorship decisions made by platforms in good faith.

But a claim against a social media site for violating HB 20 through a content takedown would still require a trip to court to establish that affirmative defense. And because the law grants any Texan standing to sue, social media sites look likely to face a lot of lawsuits, at considerable expense, if they remove content.

HB 20 also "prohibits email service providers from impeding the transmission of email messages based on content," as Abbott's press release explains.

Groups up in arms

"We believe the Texas law is destined to fail on First Amendment grounds," said Alexandra Reeve Givens, CEO of the Center for Democracy and Technology (CDT), a technology and civil rights group, in a statement. "Every court to consider the question has found that social media platforms have a First Amendment right to edit and curate the content they publish on their sites."

CDT, the Electronic Frontier Foundation, the National Coalition Against Censorship, R Street Institute, the Woodhull Freedom Foundation, and the Wikimedia Foundation together submitted an amicus brief [PDF] asking the Supreme Court to intervene and restore the preliminary injunction vacated last week by the Fifth Circuit.

"Every court that has considered the issue has found that social media platforms have a First Amendment right to edit and curate the content they publish on their sites," the brief says. "As practiced by social media platforms – including the large platforms that HB20 regulates – content moderation is the exercise of editorial judgment."

Meanwhile, in Michigan, state legislators discussed a similar bill, HB 5973, "to prohibit certain censorship by certain social media platforms." ®

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