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Texas law banning moderation by social media platforms is approved by the 5th Circuit

Controversial Texas law allowing citizens to sue social media platforms for censoring political speech takes effect after federal appeals court reversed an injunction preventing the application of the law.

A three-judge panel of the Fifth Circuit Court of Appeals found that a federal district court erred in finding the law to be ostensibly unconstitutional and threatened the expression rights of the platform.

House Bill 20 was passed by the Republican-controlled Texas Legislature last year and signed into law by the state’s Republican Governor, Greg Abbott. The law qualifies social media platforms with more than 50 million users, such as Facebook, Twitter and YouTube, as public carriers, requiring them to be open to everyone as a public forum. Users who believe their political speech has been censored, either through the platform removing their content or having their account banned, can sue the platform for declaratory relief and an injunction.

Additionally, the law required platforms subject to the law to share all information regarding how they target users, promote content, moderate posts, and use algorithms.

Two tech trade groups, NetChoice and the Computer and Communications Industry Association, filed a lawsuit challenging the law, arguing that it violated the platform’s First Amendment rights and their platforms’ editorial discretion. . NetChoice and CCIA said that if allowed to go into effect, HB 20 would require platforms to host racist propaganda, foreign government disinformation and medical misinformation.

The Louisiana-based Fifth Circuit Court of Appeals judges disagreed. Circuit Judge Edith Jones, appointee of Ronald Reagan, Andrew Oldham, appointee of Donald Trump, and Leslie Southwick, appointee of George W. Bush, found that social media companies were misinterpreting their own “right to muzzle speech “.

“We reject the idea that corporations have the right to freely censor what people say,” Oldham wrote in his 90-page opinion.

Writing a striking critique of the arguments of business organizations, Oldham argued that service providers such as cellphone companies, banks and email providers would be allowed to cancel an individual’s accounts based on their political affiliation if the plaintiff’s arguments are allowed. Additionally, arguing against the views of NetChoice and the CCIA, the judge also perceived that social media platforms might in bad faith portray themselves as a platform for free speech while censoring viewpoints with which they don’t agree.

“We reject the platforms’ attempt to extract freewheeling censorship directly from the Constitution’s free speech guarantee,” Oldham wrote. “The Platforms are not newspapers. Their censorship is not speech. They are not entitled to facial relief before law enforcement. And HB 20 is constitutional because it does not compel or impede the platforms’ own discourse in any way.

Justices Jones and Southwick agreed with Oldham and his view that the law is not patently unconstitutional and that such a claim is likely to fail. However, Justice Southwick disagreed with the majority’s finding that the moderation that social media platforms do to content that is posted on their sites is similar to the way newspapers curate content.

Judge Southwick wrote that provisions in the law that prohibit social media platforms from removing content violate the platforms’ First Amendment right to editorial discretion and content curation.

“When social media platforms that deal with speech make decisions about what speech is permitted, presented, promoted, stimulated, monetized, etc., they are engaging in an activity to which the protection of the First Amendment is attached,” Southwick wrote. “Balance and fairness would certainly be preferable, but the First Amendment does not require it.”

Texas Attorney General Ken Paxton hailed the court’s decision as a victory for the Constitution. In a post on Twitterthe Republican said “big tech can’t censor the political voices of any Texan!”

In a Press releaseNetChoice Vice President and General Counsel Carl Szabo said he was disappointed with the Fifth Circuit’s ruling but believed the matter would be resolved by the U.S. Supreme Court.

“We remain confident that when the United States Supreme Court hears any of our cases, it will uphold the First Amendment rights of websites, platforms and apps,” Szabo said.

He was not alone in hoping that the business organization and social media platforms will achieve a more preferable outcome on appeal to the High Court. Scott Wilkens, senior counsel at Columbia University’s Knight First Amendment Institute, called the Fifth Circuit’s ruling unconvincing in a statement.

“The First Amendment issues presented by Texas law cannot be resolved simply by recasting the platforms’ editorial decisions as censorship,” Wilkens said. “We hope and expect that the Supreme Court will stay and ultimately reverse this decision.”

If the court were to take up the matter, it would be the second time it would assess the constitutionality of HB 20. Earlier this year, the Supreme Court, in a 5-4 decision, overturned a stay, issued by the Fifth Circuit, which would have allowed the law to take effect while the case made its way through the courts.

Groups against the law seem to be hoping that when the case returns to the Supreme Court, the justices could rule the same way, handing a big win to social media platforms.

House Bill 20 was seen largely as a pushback against social media platforms after former President Donald Trump was permanently banned from sites including Twitter and Facebook for his involvement in the Jan. 6 attack on the Capitol. American. Conservatives in the Texas legislature have decried that many platforms have a liberal bias and often censor Republican speech.

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