May 16, 2022 - Technology

Court opens way for flood of Texas "censorship" lawsuits

Illustration of a row of gavels, with all but one of them transparent.

Illustration: Brendan Lynch/Axios

Tech platforms are facing a new reality: Unless the U.S. Supreme Court intervenes, Texans could immediately start suing giants like Meta and YouTube over content moderation decisions they don't agree with.

Driving the news: The United States Court of Appeals for the Fifth Circuit reversed an earlier ruling that had stopped Texas from enforcing its social media law, HB 20, last week. Industry groups asked the Supreme Court Friday for an emergency stay.

The law's supporters see it as a way to get Facebook, YouTube, Twitter and other social media companies to stop what many on the right have long viewed as "censorship" of conservative viewpoints.

Opponents point out that the law is likely to let virtually anyone challenge any content-related decision by the platforms, even though most content moderation involves blocking spam and porn and barring harassment and bullying.

Details: HB 20, which applies to platforms with 50 million or more U.S. monthly users, bars "censorship" based on "viewpoint."

  • It defines "censorship" as acts that "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression."
  • It empowers individuals to bring legal action against companies that violate the law.

How we got here: Texas passed HB 20 last September, but a federal district court judge blocked it from going into effect in December.

  • Last week's appeals court ruling reversed the lower court and will allow the law to take effect unless the Supreme Court steps in.

What they're saying: "HB 20 strips private online businesses of their speech rights, forbids them from making constitutionally protected editorial decisions, and forces them to publish and promote objectionable content,” Chris Marchese, counsel for NetChoice, one of the groups appealing the ruling, said in a statement.

  • “The First Amendment prohibits Texas from forcing online platforms to host and promote foreign propaganda, pornography, pro-Nazi speech, and spam.”
  • The law's opponents also see it as violating Section 230 of the Communications Decency Act, which protects online platforms from liability for moderating user-contributed content.

Between the lines: In theory, a social media platform could just stop taking posts from Texans as it hopes for HB 20 to lose in court.

  • But the law defines removing content based on "a user's geographic location in this state or any part of this state" as censorship, too, so such a move wouldn't end the flood of lawsuits.

The big picture: A number of state legislatures have attempted to pass laws that prevent social media platforms from taking down posts they find objectionable, in an attempt to fight alleged bias against conservatives.

  • Members of Congress have introduced similar bills.
  • In Florida, a similar law passed last May was almost immediately put on hold by a federal judge. The state's appeal of that decision is awaiting a ruling from the Eleventh Circuit.

The bottom line: The Fifth Circuit decision shows that these "anti-censorship" laws can find at least some judges who won't reject them out of hand.

  • Content moderation experts tell Axios this will give other states an incentive to see if they can find other sympathetic judges.
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