Sep 18, 2022 - Technology

Federal appeals court upholds controversial Texas social media law

Illustration of Facebook and Google app about to be deleted.
Illustration: Allie Carl/Axios

A federal appeals court dealt social media giants a blow Friday when it upheld a Texas law that seeks to stop platforms from removing posts if the removal can be viewed as discriminating against a "viewpoint."

Driving the news: The U.S. Court of Appeals for the 5th Circuit ruled that the Texas law, HB20, does not violate the First Amendment rights of social media platforms.

  • Tech companies and groups representing them in court have argued the law is unconstitutional, and that platforms have a First Amendment right not to host speech they deem to be objectionable.

Why it matters: If the law goes into effect, Facebook, Twitter, YouTube and other social media companies with more than 50 million users will effectively be prevented from enforcing content-related rules on any user postings that can claim to express a political view.

  • The ruling opens a door for similar laws to be passed by other states, unless a future U.S. Supreme Court appeal reverses it.

Between the lines: Social media companies face pressure from the right to "censor" less and from the left to take down more content to limit the spread of misinformation.

  • Conservatives have been accusing social media companies of content bias for years, driven by a belief that social media rules are unfairly tilted in favor of liberal-leaning content.

Context: Texas' law has been upheld and rejected by a number of courts already. In May, the Supreme Court blocked it from taking effect before tossing it back to the 5th Circuit.

  • A federal appeals court struck down a similar law in Florida in May, in a ruling that directly contradicts the Texas ruling — meaning the issue will almost certainly have to be decided by the Supreme Court.

How it works: The Texas law bars platforms from acting to "block, ban, remove, de-platform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression." Individuals and the Texas attorney general can sue large social media platforms for violations.

What they're saying: "Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say," the judges wrote in their ruling.

  • Judge Andrew Stephen Oldham, a nominee of former President Trump, wrote that the Texas law "does not chill speech; if anything, it chills censorship."

The other side: Critics of the law say it would force platforms to host dangerous and illicit content and fill social media platforms with spam and hate speech.

  • "We strongly disagree with the court’s decision. Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk," said Matt Schruers, president of the Computer & Communications Industry Association.
  • "'God Bless America' and 'Death to America' are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same," he said.

What's next: The law won't take effect yet. First, the 5th Circuit has to issue instructions to a lower court, and a Supreme Court appeal from tech groups is likely.

Go deeper: Court opens way for flood of Texas "censorship" lawsuits

Go deeper