Appeals Court Allows Individual Texans to Put Restraints on Big Tech

The Fifth Circuit Court of Appeals reversed a preliminary injunctionpreliminary injunctionA preliminary injunction is a temporary court order issued before a case is finally decided that requires a party to take or stop an action while the litigation continues. Federal courts generally consider the likelihood of success, irreparable harm, the balance of equities, and the public interest before granting one.Read more → against a Texas social media law, allowing it to go into effect.

The Court’s split 2-1 panel vote will allow private parties to sue tech platforms over allegations of censorship and put sizeable constraints on the country’s largest social media platforms.

On September 9, 2022, Texas Governor Greg Abbot signed into law House Bill 20 (HB 20), legislation that would put restrictions on the largest social media platforms in the United States and allow users to sue those companies if they are either blocked from posting content or have their content removed.

Under the law, social media platforms with at least 50 million monthly active users must “reasonably inform a user about the types of content allowed on the social media platform;” issue a quarterly transparency report; and, “disclose accurate information regarding its content management, data management, and business practices.” The law also pushes platforms to have a live representative available to guide users on how to file complaints.

The largest social media companies in the U.S. are prohibited from “censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on… the viewpoint of the user or another person.” These restraints only apply to users who reside in or do business in Texas.

Shortly after the bill was signed, the Computer and Communication Industry Association (CCIA) and NetChoice filed a lawsuit arguing the case was unconstitutional under the First Amendment and that this law would allow problematic speech and misinformation to be widely available. In their complaint, the two organizations state that the law prohibits a particular set of social media platforms “from exercising editorial discretion over content those platforms disseminate on their own privately owned websites and applications.”

In early December, Judge Robert Pitman, a federal judge from the U.S. District Court for the Western District of Texas, blocked the law by issuing a preliminary injunction. He reasoned that “HB 20’s prohibition on ‘censorship’ and constraints on how social media platforms disseminate content violate the First Amendment.” Other concerns by the judge included “unduly burdensome disclosure requirements on social media platforms.”

The lawsuit targeting the law was filed by the Computer and Communications Industry Association (CCIA) and NetChoice. CCIA is a non-profit international membership organization that promotes “open markets, open systems, and open networks.” NetChoice, also a non-profit, is a national trade association made up of e-commerce and online businesses “actively involved in litigation to vindicate the First Amendment rights of online services to moderate content posted on their platforms free from unwarranted government interference. “

YouTube (2.5 billion monthly users), Pinterest (444 million monthly users), Twitter (436 million monthly users), and Facebook (2.9 billion monthly users) are all members of both CCIA and NetChoice.

The Internet, as it has evolved, poses interesting questions about how far the First Amendment protections can reach. While “Congress shall make no law… abridging the freedom of speech, or of the press,” social media are private corporations that want to retain the right to edit and curate the content that is distributed on their platforms.

In the 5th Circuit opening brief, the State of Texas stated that the social media platforms “control the ‘modern public square’,” a term taken from Packingham v. North Carolina (2017). The state continues that these platforms “discriminate by viewpoint as to who can speak in that square.” HB 20 was a response to the control held by these “big tech” companies.

Conversely, in CCIA and NetChoice's opening brief, they argued that HB 20 “is an extraordinary assertion of government power to substitute the government’s editorial preferences for those of private publishers.” Section 7 of the law “prohibits platforms from engaging in editorial discretion based on ‘viewpoint.’” Section 2 of the law “compels speech through a slew of burdensome disclosure and operational requirements.”

The two non-profits argue that allowing this law to go into effect and viewing social media platforms as merely a “host” to expression, is a slippery slope to the government also controlling how other entities disseminate speech “like bookstores, book publishers, essay-compilation editors, theaters, art galleries, community bulletin-boards, and comedy clubs.”

Texas is not alone in the fight against censorship on social media platforms, usually dubbed “big tech.” Florida Govern Ron DeSantis signed Senate Bill 7072 in May of last year which prohibits social media platforms from “willfully de-platforming a [political] candidate.” In a statement after the signing of the bill, DeSantis promoted this law as a “guaranteed protection against the Silicon Valley elites.”