Technology trade groups are likely to appeal a ruling that would allow Texas to punish large social media platforms for blocking users because of their political views. The case could ultimately wind up before the U.S. Supreme Court.
Late Friday, a panel of the U.S. 5th Circuit Court of Appeals issued a split decision, with two of the three judges on the panel ruling to uphold House Bill 20. The law bans social media platforms with more than 50 million users from removing an account holder for what it terms "viewpoint discrimination."
Under HB 20, a banned user can sue a social media platform for reinstatement. If that person can't find a private attorney, the Texas attorney general may bring a suit on the person's behalf.
Two social media trade groups, NetChoice and the Computer & Communications Industry Association (CCIA) argued that the law violated the First Amendment rights of the platforms to moderate their own content. A federal district court agreed with the plaintiffs, and the US Supreme Court issued an injunction blocking enforcement of the law while the 5th Circuit considered the case.
Circuit Judge Andrew S. Oldham wrote the decision of the panel.
"In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. 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 (italics in the original)," Oldham wrote. "Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings."
Matt Schruers, president of the CCIA, said the ruling went against a vast body of case law on the First Amendment. "The First Amendment protects individuals from the government," Schruers said. "This is the government telling members of the public what they must say. There's nothing more Orwellian than having the government demand that certain viewpoints are distributed in the name of free expression."
That's a concern apparently shared by at least one of the three judges. "The First Amendment...is what protects the curating, moderating, or whatever else we call the Platforms' interaction with what others are trying to say." Circuit Judge Leslie H. Southwick wrote in his partial dissent. "The closest match I see is caselaw establishing the right of newspapers to control what they do and do not print, and that is the law that guides me until the Supreme Court gives us more."
The ruling will not go unchallenged. NetChoice and CCIA are trying to decide on whether to appeal first to the full bench of the 5th Circuit, in what is known as an en banc hearing, or to appeal directly to the Supreme Court.
Earlier this year, the 11th Circuit Court of Appeals struck down a similar social media censorship law, brought by the same trade groups, on the ground that the law violated the First Amendment.
"Not only were we surprised that the two judges of the 5th Circuit would ignore the ruling of the 11th Circuit. We were actually more surprised that these two judges would ignore the statements, comments, and decisions from the US Supreme Court when it sent this case back down to the 5th Circuit," said Carl Szabo, vice president and general counsel of NetChoice. "Essentially, what you’re seeing is the lower court, the 5th Circuit, whistling past the graveyard, when the Supreme Court just a couple of months ago told the 5th Circuit that this is a First Amendment violation."
Texas lawmakers passed HB 20 after the accounts of several high-profile conservatives, notably former President Trump, were removed from Twitter and Facebook for what the platforms deemed violations of their terms of service. They argued, and the majority on the circuit court panel agreed, that social media platforms are the equivalent of common carriers such as telephone service and cable service providers. As such, they are subject to regulation.
State Attorney General Ken Paxton hailed the ruling as a victory for free speech in a statement.
"Big Tech's reign of endless censorship and their suppression of conservative viewpoints is coming to an end," said Attorney General Paxton. "These massive corporate entities cannot continue to go unchecked as they silence the voices of millions of Americans. HB 20 was designed to protect every Texan wanting to fully express his or her First Amendment rights, and the court made the right decision in upholding the law."
Schruers said there's a problem with Paxton's claim and with the basic premise of the law.
"I am aware that there is a sense, a misguided sense, that digital services somehow disadvantage conservative voices, but the empirical evidence and the scholarly research shows that conservative voices are actually among the most effective in using social media to get their messages out," Schruers said.