A federal appeals court has agreed to put on hold a Texas social media law, HB 20, that restricts content moderation actions on social media platforms. The Fifth U.S. Circuit Court of Appeals announced that it was granting a September request from social media platforms to block enforcement of the law as trade associations appeal the case to the Supreme Court.
HB 20 was signed into Texas law in September 2021, which prohibits social media firms (defined as social media platforms that functionally have more than 50 million active users in the United States in a calendar month) from removing, demonetizing, banning, or restricting content based on the viewpoint of the user or another person. The law gives the Texas attorney general the ability to bring suits to enforce moderation requirements. It also gives Texas residents a private right of action, allowing them to sue the platforms for declaratory or injunctive relief over social media moderation decisions. Finally, the law requires social media companies to disclose transparency reports about how they promote or moderate content.
Technology and social media groups have opposed the law, arguing that it is unconstitutional and prevents platforms from removing hate speech and extreme expression. Social media platforms have viewed HB 20 as a challenge to First Amendment precedent, which states that the government may not compel private entities to host speech. In previous litigation, the trade associations have argued that the law is preempted by Section 230 of the Communications Decency Act (CDA) and violates the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Full Faith and Credit Clause, and the Commerce Clause.
The trade associations, the Computer & Communications Industry Association and Netchoice, requested for the appellate court to stay the law’s implementation, in order to have the Supreme Court review the case. The trade associations note that implementation of the law will cause social media companies to spend billions of dollars to monitor their content, asking the appeals court to preserve status quo as the case would proceed to the Supreme Court. The trade associations expect that the Supreme Court will find in their favor, noting the “clear-cut First Amendment issues” that deprives social media platforms their ability to remove offensive and dangerous content and provide their users with a safe and enjoyable environment.
The law was reviewed by the Fifth Circuit panel in a published opinion that reversed a Texas federal court’s injunction blocking the law’s implementation. The Fifth Circuit’s decision to uphold the law was split, holding that the law actually protects free speech rather than suppressing it. In U.S. Circuit Judge Leslie H. Southwick’s partial dissent, he found that when social media platforms review their users’ content that may be moderated, permitted, promoted, boosted, etc., they are engaging in First Amendment-protected expression, and the Supreme Court will have the final word. This split made it more likely for the Supreme Court to review the case.
The Supreme Court has recently agreed to hear a few cases regarding regulating social media; including agreeing to hear two cases that could narrow the scope of Section 230 of the Communications Decency Act. Additionally, the state of Florida passed a similar social media law in May 2021, which prevented social media platforms from ‘deplatforming’ political figures. The Eleventh Circuit Court of Appeals blocked that law, noting it was likely unconstitutional, and Florida has asked the Supreme Court to rule on whether states may force social media companies to host content they would seek to remove.
The Supreme Court will have to answer a landmark question in the battle over digital content and speech moderation rights. The results of the Supreme Court’s decision could affect many social media platforms and businesses in their attempts to quash harmful speech. If the Supreme Court finds that the laws are constitutional, social media platforms may have to develop certain reporting and disclosure requirements to meet the requirements of the laws.