A federal appeals court in Texas has issued a ruling that effectively allows Texas residents, or the Texas Attorney General’s Office, to sue Facebook, Twitter, YouTube or other major social media networks for moderating content based on the “point from the user’s or someone else’s point of view.”
HB20, “Regarding censorship or any other interference with digital expression, including expression on social media platforms or through email messages,” says social media platforms with more than 50 million monthly active users “cannot censor a user, a user’s expressions, or a user’s ability to receive another person’s expression”, based on a person’s point of view or geographic location. It was approved in September 2021, but blocked by a federal court a few months later, claiming the law would likely violate the First Amendment, which protects online platforms’ rights to editorial discretion.
The Fifth Circuit Court of Appeals stayed that injunction, however, meaning the law could go into effect immediately. The audience, according Protocol report, was a mess: one judge insisted that Twitter is not a website but an “internet provider”, while another was concerned that if Twitter and Facebook prevailed, phone companies would be able to disconnect phone calls if hear a speech other than How.
There has also been confusion over the difference between internet service providers and “interactive computer services,” a sort of catch-all term for companies that include social media platforms largely shielded from legal liability for content posted by their users. They also have explicit permission to moderate this content as they see fit.
(Phone companies, for the record, are defined as “common carriers” in the US, meaning they are essentially just pipelines carrying data regardless of content, and are legally not allowed to discriminate or restrict access based on the content of calls. Internet providers were also briefly designated as common carriers, even the FCC chose to kill net neutrality in 2017.)
No reason for the decision, which you can read in full on here, was rendered: It reads simply: “It is decreed that the contested appeal of the appellant to suspend the preliminary injunction pending appeal be granted.” But with the injunction suspended and the law now in effect, it’s unclear how social media platforms will proceed. How CNN explains, eliminating all algorithms is one approach, although even that can be used to sue Facebook or Twitter by users who believe they are being “silenced” because their posts are being buried under mountains of spam. Hate speech, pornography and disinformation will also almost certainly proliferate; according to the Knight First Amendment Institute, the alleged anti-censorship law actually opens the door to a significant increase in government intrusion into online speech.
“This decision will have dire consequences for online speech,” Scott Wilkens, senior attorney at the Knight First Amendment Institute, said in a statement. demonstration. “As we said in a brief filed with the Fifth Circuit a few weeks ago, Texas law violates the First Amendment because it forces social media companies to publish speeches they don’t want to publish.
“Worse, the First Amendment theory that Texas is advancing in this case would give the government broad power to censor and distort public discourse. The transparency provisions of Texas law present a more difficult constitutional issue, but the mandatory provision of the law is clearly unconstitutional and must be overturned.”
“As we said in a brief filed with the Fifth Circuit a few weeks ago, Texas law violates the First Amendment because it forces social media companies to publish speech they don’t want to publish,” says @scottwilkens. @pauldebenedetto @HoustonPubMedia https://t.co/lCrJlPV4fPMay 13, 2022
Litigation is ongoing and social media companies must file an emergency appeal, but it is possible that the dispute will not be resolved unless and until it ends before the US Supreme Court. What would happen at that moment is impossible to say, but, as CNN notes, the apparent desire to overthrow Roe x Wade suggests that some aspects of the First Amendment, particularly with regard to online platforms, could also be reinterpreted, with potentially far-reaching consequences.
Facebook, Twitter and YouTube are the focal points of the new law, but it applies to all social networks with a monthly active user count in excess of 50 million, which includes more player-focused platforms like Twitch and Discord. I’ve reached out to both of them to comment and will update if I get a response.