A Texas appellate court delivered a supersized boot to the butt of social media companies that censor user content.
The United States Court of Appeals for the Fifth Circuit overturned a Texas court ruling that had sided with big tech. A new Texas statute, House Bill 20, forbids social media platforms from censoring content based on the user’s viewpoint. A Virginia telecom and the Computer & Communications Industry Association sued the state, claiming the law is unconstitutional. According to them, the law does not apply to anyone at any time under any circumstances.
Only very large social media companies with more than 50 million monthly active users, such as Twitter, Facebook and YouTube, are affected by HB 20.
A panel of three appellate court judges swatted big tech’s argument away like a cow’s tail smacks a pesky fly. The judges called the tech company argument an odd inversion of the First Amendment, which protects freedom of speech. Displaying a warped view of the free speech right enumerated in the Bill of Rights, big tech argues the right to free speech includes a company’s right to muzzle speech.
Examples include banning former President Donald Trump from Twitter and Facebook because of his speech. Or social media platforms censoring New York Post reports about Hunter Biden’s laptop because they disagree. Many social media accounts have been banned or suspended after questioning COVID-19 vaccines or government pandemic containment polices.
Texas just told corporate “thought police” a legal equivalent of: “Whoa! Hold on a second there, pardner!”
“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,” the judges argued. “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”
Judges, relying on Supreme Court precedent, argued that HB 20 does not regulate the speech of the platforms at all, neither compelling them to speak nor restricting them from speaking. It protects the speech of users and regulates platforms’ conduct as it relates to that speech, they stated. “[C]ensorship is at best a form of expressive conduct, for which the overbreadth doctrine provides only ‘attenuate[d]’ protection,” Judge Andrew Oldham wrote.
The court cited Section 230 of the Communications Decency Act of 1996 that clarifies companies are not “speaking” when they host other people’s speech. The court also rejected the platforms’ claims of “editorial discretion” on two bases.
Unlike newspapers, social media platforms do not claim responsibility for the content they host, and are in fact protected from such liability by Section 230, the court noted. Also, newspapers engage in content moderation before it is published; social media platforms, however, perform their censorship after users publish content to their site.
Finally, the Fifth Circuit cited the common carrier doctrine, which empowers Texas to prevent platforms from discriminating against Texas users.
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