87th LegislatureJudicialTexas Law Against Social Media Censorship Upheld by Federal Appeals Court

After a back and forth of injunctions, the appeals court upheld Texas' law ruling that it does not violate the First Amendment.
September 19, 2022
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Texas Republicans won a significant victory in the U.S. Fifth Circuit Court of Appeals on Friday as the court upheld the state’s anti-social media censorship bill passed last year.

House Bill (HB) 20 prohibits technology companies from censoring users based on viewpoint, defined as “any action taken to edit, alter, block, ban, delete, remove, deplatform, demonetize, de-boost, regulate, restrict, inhibit, inhibit the publication or reproduction of, or deny equal access or visibility to expression, to suspend a right to post, remove, or post an addendum to any content or material posted by a user, or to otherwise discriminate against expression.”

Trade associations Net Choice and the Communications Industry Association sued the state last year, alleging the law violates the First Amendment rights of companies such as Facebook and Google — namely that it would require them to host “harmful” speech on their platforms.

HB 20 also allowed users “censored” by a platform to sue the social media company that removed them.

A federal district court in Texas suspended the law, a decision appealed to the Fifth Circuit by Attorney General Ken Paxton. Back in May, the Fifth Circuit issued a preliminary injunction on the lower court’s decision, allowing the law to take effect. Shortly after, the U.S. Supreme Court stayed that injunction, further suspending HB 20’s effect, until the Fifth Circuit could issue its full ruling.

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“In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment,” the panel of judges ruled. “That Amendment, of course, protects every person’s right to ‘the freedom of speech.’ But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”

The judges continued, “On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business.”

“What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone — as Twitter did in championing itself as ‘the free speech wing of the free speech party.’ Then, having cemented itself as the monopolist of ‘the modern public square,’ Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community.”

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the panel concluded.

The tech company petitioners argued that the law “chills” speech — a definition describing laws that deter the exercise of speech through the threat of legal recourse — which the court rejected, saying, “if Section 7 chills anything, it chills censorship.”

Singling out one argument about prohibiting the removal of “pro-Nazi speech, terrorist propaganda, [and] Holocaust denial[s],” the court chided, “the Platforms’ obsession with terrorists and Nazis proves the opposite.”

“HB 20 expressly permits the Platforms to censor any unlawful expression and certain speech that ‘incites criminal activity or consists of specific threats’ — not to mention any content the Platforms are authorized to censor by federal law.”

Underscoring their point, the judges wrote, “[HB 20] protects Texans’ ability to freely express a diverse set of opinions through one of the most important communications mediums used in that State. And it leaves the Platforms free to similarly opine: They can still say whatever they want (or decline to say anything) about any post by any user.”

Judge Leslie Southwick dissented in part, taking issue with the court’s decision on the law’s most significant provision.

“I conclude Section 7’s anti-discrimination provisions are an unconstitutional infringement on the Plaintiffs’ rights to edit or remove, after the fact, speech that appears on their private Platforms,” Southwick stated.

“[The Constitution] does mean that when the social media Platforms who are in the business of speech make decisions about which speech is permitted, featured, promoted, boosted, monetized, and more, they are engaging in activity to which First Amendment protection attaches. Balance and fairness certainly would be preferable, but the First Amendment does not require it.”

HB 20 was passed during the second special session last year and took effect on December 2, 2021. It was among those bills killed during the regular session at the May second reading deadline while Democrats “chubbed,” a legislative term for time-wasting.

But in the special session, the bill passed the Legislature along party lines in both chambers — with some House Democrats still on their hiatus from the then-defunct quorum bust.

The Fifth Circuit remanded the case back to the district court, and it could make its way back to the U.S. Supreme Court for a full review — something Justice Samuel Alito predicted would occur back in May.

Disclaimer: The Texan submitted an amicus brief in support of House Bill 20.

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Brad Johnson

Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.