A three-judge appellate panel from the conservative 5th Circuit has opted to keep in place a controversial law that prohibits social media companies from banning content it deems harmful, reversing a lower court’s injunction that had temporarily blocked its enforcement during pending litigation.
Two trade organizations representing multiple social media and commerce platforms—including Twitter, Facebook, and TikTok—had sued Republican Texas Attorney General Ken Paxton over the law, H.B. 20, which Gov. Greg Abbott, also a Republican, signed into law in September.
The expansive law prohibits social media platforms—defined in the law as “an internet website or application that is open to the public” and allows users to create accounts and communicate with each other “for the primary purpose of posting information, comments, messages, or images”—from engaging in certain “censorship.” Specifically, the law states:
CENSORSHIP PROHIBITED. (a) A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on
(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user ’s expression or another person ’s expression; or
(3) a user’s geographic location in this state or any part of this state.
(b) This section applies regardless of whether the viewpoint is expressed on a social media platform or through any other medium.
Abbott and Paxton are both allies of former President Donald Trump, who was banned from Twitter and Facebook for spreading lies about the 2020 election linked to the Jan. 6 riot at the U.S. Capitol, and then praising those who carried out the attack.
The Twitter ban is permanent, although billionaire businessman Elon Musk said he would reverse that if his bid to buy Twitter succeeds. Meta, the parent company of Facebook and Instagram, had previously announced that Trump’s suspension would last for two years, and that he would be allowed to return if certain conditions, including whether the company believes Trump poses a “serious risk to public safety,” are met.
In the lawsuit against Paxton, the two trade organizations, NetChoice and the Computer and Communications Industry Association (CCIA), argued that by forcing the social media companies to provide a platform for what it deems to be harmful contact, the law violates the companies’ First Amendment rights.
“H.B. 20 imposes expression-chilling disclosure burdens and operational requirements” that go far beyond what the constitution allows, the organizations say.
“At a minimum, H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation,” the complaint alleges.
The lawsuit also argues that because the “content and conduct regulated by the anti-editorial discretion provisions of H.B. 20 largely take place outside Texas,” the law violates the Commerce Clause, which puts legislation regarding matters of interstate commerce under the jurisdiction of Congress, not individual states.
In December 2021, U.S. District Judge Robert Lee Pitman, a Barack Obama appointee, granted NetChoice’s request for an injunction, finding that the law violated the companies’ First Amendment rights.
On Wednesday, three judges on the 5th U.S. Circuit Court of Appeals—known for being the most conservative federal appellate bench in the nation—issued a terse ruling reversing that injunction.
“It is ordered that appellant’s opposed motion to stay preliminary injunction pending appeal is granted,” said the ruling, which was issued by U.S. Circuit Judges Edith Jones, a Ronald Reagan appointee, Leslie Southwick, a George W. Bush appointee, and Andrew Oldham, a Trump appointee.
The judges did not issue a written opinion explaining why they reversed the lower court, and the one-sentence ruling contains a footnote stating: “The panel is not unanimous,” though it does not reveal who dissented.
The 5th Circuit’s ruling sets up a direct legal conflict with a similar law in Florida that was blocked by a federal judge last year.
“Texas and Florida are hoping this decision paves the way for a sea change in how social media is regulated,” privacy and cybersecurity expert Leeza Garber told Law&Crime. “However, these large private platforms—which are still ruled by Section 230 and allowed to moderate and ban as they see fit—will likely not make responsive changes in the near future.”
Garber said that regardless of the fate of H.B. 20, laws governing how content is handled by social media platforms must be updated.
“Many of the laws impacting these platforms, which have millions of daily users around the world, are decades old, and new tech—such as the Metaverse—is constantly around the corner,” she said. “We need to update the way big tech handles speech, privacy, and cybersecurity to create safe spaces for ourselves and our data.”
Representatives for NetChoice expressed disappointment in the ruling and said the organization is considering its legal options.
“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,” Carl Szabo, Vice President and General Counsel of NetChoice said 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. “In the meantime, unfortunately, Americans—especially Texans—will be negatively impacted.”
Following the circuit court’s ruling, Paxton took to social media to express his gratitude and his belief that the judges made the right call.
“My office just secured another BIG WIN against BIG TECH,” Paxton said in a tweet on Wednesday. “Texas’s HB20 is back in effect. The 5th Circuit made the right call here, and I look forward to continuing to defend the constitutionality of #HB20.”
My office just secured another BIG WIN against BIG TECH.#Texas‘s HB20 is back in effect. The 5th Circuit made the right call here, and I look forward to continuing to defend the constitutionality of #HB20. https://t.co/197atNgQ2Z
— Texas Attorney General (@TXAG) May 11, 2022
Claims of social media bias favoring liberal opinions are largely unfounded, according to multiple studies. A 2021 study from New York University’s Stern Center for Business and Human Rights concluded that a “claim of anti-conservative animus on the part of social media companies is itself a form of disinformation: a falsehood with no reliable evidence to support it.”
That study itself sparked a conservative backlash.
A study from Indiana University published in September 2021 found that political bias on social media comes from users, not the platforms themselves. Moreover, the study found, “political biases on Twitter favor conservative content.”
Read the ruling, below:
[Images via Justin Sullivan/Getty Images and Brandon Bell/Getty Images.]
Have a tip we should know? [email protected]