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Supreme Court weighs conflicting rulings on removal of social media content

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The duel of lower court rulings over how social media platforms govern content removal could prompt the Supreme Court to consider whether the First Amendment protects online platforms’ editorial choices or prevents certain points from being censored of sight.

The United States Court of Appeals for the 5th Circuit ruled on Friday that a Texas law, which seeks to prevent platforms from deleting posts if the deletion can be considered to discriminate against a “point view,” does not violate the constitutional rights of social media platforms.

But Big Tech companies have argued that the law violates First Amendment rights, saying the amendment also includes their right not to speak out on a platform they consider objectionable.

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The 5th Circuit’s decision leaves room for other states to pass similar laws unless an appeal from the Supreme Court overturns the decision. And the Texas law, HB 20, has been overturned and upheld by multiple courts to date.

In May, the 11th Circuit Court of Appeals ruled on a similar Florida law in a completely opposite fashion to the 5th Circuit’s latest decision, making the issue even riper for High Court review.

Judges already ruled in May to block the Texas law from taking effect while legal battles continue, although Judge Samuel Alito said the case “would clearly merit consideration by this court”.

“Social media platforms have transformed the way people communicate with each other and obtain information,” wrote Alito, who was joined by Justices Clarence Thomas and Neil Gorsuch. “This is a groundbreaking Texas law that addresses the power of mainstream social media companies to shape public debate on important issues of the day.”

If major social media companies such as Facebook, Twitter and Google do not receive another reprieve pending a new en banc hearing by the 5th Circuit or review by the Supreme Court, the Texas law will go into effect and increase the potential consequences for how these platforms moderate their content.

But Big Tech companies are likely to appeal before the law comes into force, setting up a possible High Court review.

Texas law prevents social media platforms from acting to “block, prohibit, remove, de-platform, demonetize, de-boost, restrict, deny equal access or visibility, or otherwise discriminate against expression “. The law also adds a provision allowing individuals and the Texas Attorney General to sue social media platforms for infringement.

Florida law also contains similar provisions, including a fine for social media companies that permanently ban candidates from running for office in the state.

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Matt Schruers, president of the Computer & Communications Industry Association, expressed strong disagreement with Friday’s decision by the 5th Circuit.

“We strongly disagree with the court’s decision. Forcing private companies to give equal treatment to all viewpoints on their platforms puts foreign propaganda and extremism on an equal footing with decent internet users, and puts Americans at risk,” Schruers said.

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