Texas' law to punish alleged social media censorship is on hold, pending an appeal to the U.S. Supreme Court. But Texas secessionists are seeking to use the law in a class action suit against Facebook's parent company.
The Texas Nationalist Movement and its president, Daniel Miller, are asking for an injunction against Meta Platforms under House Bill 20, saying that Meta's banning of posts including a link to its website is illegal censorship.
"Plaintiffs suffer immediate and irreparable harm every day that Meta continues to censor Plaintiffs," the plaintiffs' petition said. "And as the U.S. Supreme Court and the Fifth Circuit have both held, ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'"
The problem for the plaintiffs is that the U.S. 5th Circuit Court of Appeals has stayed enforcement of HB 20, pending an appeal to the U.S. Supreme Court by two trade groups representing large social media platforms – NetChoice and the Computer & Communications Industry Association (CCIA). The two entities are suing Texas to overturn HB 20, contending the law violates the First Amendment rights of the platforms to moderate their own content.
The Texas Nationalist Movement and Miller "are trying to enforce a law that has been stayed. The 5th Circuit stayed the issuance of its mandate, and so the law is not in effect right now," said Tom Leatherbury, director of the First Amendment Clinic at Southern Methodist University's Dedman School of Law.
The Texas Nationalist Movement contends that the stay applies only to lawsuits brought by the Texas attorney general, not to private lawsuits such as the one it has filed against Meta.
Chris Marchese is counsel for NetChoice and one of the attorneys involved in the trade group’s lawsuit against Texas to strike down HB 20. He said the Texas Nationalist movement is technically correct, but “while theoretically the lawsuit (Texas Nationalist Movement v. Meta Platforms) could proceed, most courts won't apply a law that's already been enjoined and is headed to the Supreme Court for review. In other words, standard practice is for the court to ‘pause’ the case until resolution of the constitutional challenges in the pending cases (specifically, NetChoice v. Paxton).”
HB 20 bans social media platforms with more than 50 million users from removing an account holder for what it terms “viewpoint discrimination.” Under the law, 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.
Texas lawmakers passed HB 20 last year after the accounts of several high-profile conservatives, notably former President Donald Trump, were removed from Twitter and Facebook for what the platforms deemed violations of their terms of service. They argued 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.
From Leatherbury's perspective, the Texas Nationalist Movement's lawsuit "just proves that HB 20 is going to make the Internet virtually ungovernable, because platforms like Meta will not be able to enforce their terms of service. They will not be able to moderate content with impunity as they can now under Section 230 (of the Communications Decency Act)."
Leatherbury disagrees with the ruling of the 5th Circuit. He agrees with a contrary ruling by the 11th Circuit Court of Appeals, which struck down a similar social media censorship law passed by Florida. That the two circuits issued conflicting rulings makes it likely the issue will ultimately have to be resolved by the Supreme Court.
"If the 5th Circuit's decision in NetChoice (v. Paxton) stands," Leatherbury said, "I think this lawsuit (by the Texas Nationalist Movement) is just the tip of the iceberg as to the type of lawsuits you'll see filed against the largest platforms that are subject to the law. And I think it's a real shame, and I think the First Amendment is poorer for it."
Chris Marchese agrees. He argues that it's the First Amendment rights of social media platforms themselves that are under assault.
"The real risk is that (HB 20) just simply allows the worst people in our society to basically exercise a heckler's veto over the platforms," Marchese said. "Anytime you disagree with one of their content moderation decisions, you can go into court, and even if you don't win, you're still forcing the platform to defend against your lawsuit, and so it's a distraction. And it implements a real cost on content moderation, and ultimately, that is going to have a negative effect on everybody else who uses the Internet for legitimate reasons."
Marchese argued that HB 20 and the 5th Circuit’s decision to uphold it turn accepted definitions of freedom of speech and censorship on their heads. Historically, censorship has referred to government restriction of speech.
“This idea that the government can force any private party to host somebody else’s speech, the ramifications of that are insane,” Marchese said. “Imagine if the government could force The Wall Street Journal to carry an op-ed from Senator Elizabeth Warren or if The New York Times was forced to carry an op-ed from Senator Tom Cotton. It boggles the mind to think that a federal court could interpret the First Amendment as allowing the government to force private individuals to do the bidding for others.”