Texas’s controversial social media law HB 20 will take effect following a ruling issued today by a US appeals court. Tech industry trade groups NetChoice and the Association of the Computer and Communications Industry ( ICAC) managed block HB 20 in court last year, but that victory has been overturned by the Fifth Circuit Court of Appeals, which today awarded Texas Attorney General Ken Paxton’s request to remain in NetChoice and CCIA v. Paxton. NetChoice and the CCIA were blocking success a similar law in Florida last year.
HB 20 allows Paxton’s office or Texans to sue social networks they moderate based on “the point of view of the user or another person,” among other offenses, language that potentially makes basic moderation decisions are legally risky.
The error continues a confused audience where a Fifth Circuit judge affirmed that web services like Twitter “are not websites” and compared them to phone companies like Verizon, which are governed by specific common carrier rules set forth by the FCC. NetChoice and the CCIA can choose to mount an emergency appeal, but without quick intervention from a higher level like the Supreme Court, the law is already in place.
“In an unusual and unfortunate move, a 2-1 split Fifth Circuit panel lifted the injunction without ruling on the merits and without issuing an opinion explaining the order. Because HB 20 is constitutionally rotten from start to finish, we are weighing our options and plan to appeal the order immediately,” said Carl Szabo, Vice President and General Counsel of NetChoice.
HB 20 covers web services which have over 50 million monthly active users and rely primarily on user-generated content. That includes giant networks like Facebook, but also many smaller sites and apps. It also applies rules specifically to email providers. It is an unprecedented decision to allow state governments to control how companies moderate websites. It also conflicts with decision of a different circuit to block the similar law in Florida, which could spark a Supreme Court fight over restraint, which some judges seem anxious Take Charge Take Charge.
But it’s still unclear what the decision practically means for Texans or others on the Internet. The rule applies to decisions made after the law came into force, so aggrieved users cannot sue for prior conflicts with services. Google did not immediately respond to questions about whether it would change its policies. Twitter and Facebook owner Meta declined to comment.
According to the hearing, the decision apparently hinges on the judges’ sympathy for claims that large social networks constitute a “public square” or utility similar to a telephone network, where operators must treat content neutrally. Internet service providers like Comcast were defined as common carriers under the Obama administration’s net neutrality rules, but those rules were quickly repealed under former President Donald Trump, and web platforms like Facebook and Twitter have never been included in the definition.
Critics of HB 20 have criticized it for infringing on the First Amendment rights of private companies. “The Texas law violates the First Amendment because it forces social media companies to post speech they don’t want to post. Worse yet, the First Amendment theory that Texas is promoting in this case would give the government broad power to censor and distort public speech,” said Scott Wilkens, senior staff attorney at the Knight First Amendment Institute, in a subsequent statement. to the decision.
In a writ of opposition to the law, the Knight Institute noted that “so much user content expresses a point of view,” so HB 20 potentially prevents sites (not just Twitter and Facebook, but apparently Yelp, Reddit, Tinder and many others from sites) enforce community standards, including hate bans. speech. The rules apply not only to banning users or removing content, but also to “discrimination.”[ing] against” content, which the Knight Institute suggests could include adding fact-checking notes or any other labels.
Either way, it could send a ripple effect across the Internet, even if it’s later repealed.