A federal appeals court has reinstated a Texas state law that bans “censorship” on social media platforms such as Facebook and Twitter, allowing Texas to enforce the law while litigation continues.
A US District Court judge granted a preliminary blocking law in December. He ruled that the law violated the First Amendment right of social networks to moderate user-submitted material. Texas attorney general Ken Paxton appealed the injunction to the US Court of Appeals for the Fifth Circuit, and a panel of three judges issued a ruling Wednesday that stayed the preliminary injunction. The judges’ reasoning was not explained in the ruling. The ruling stated that the appellant’s motion to stop a preliminary injunction from expiring is granted. Although the panel decision was not unanimous it did not indicate how each judge voted.
The ruling is “startlingly radical,” said Corbin Barthold, internet policy counsel at TechFreedom, a libertarian think tank that filed a brief in the court case. Social media companies could be held liable for discriminating on the basis of ‘viewpoint. (For example, pro-ISIS content might be treated differently to anti-ISIS content. There are other problems with applying this law. Barthold stated that no one, not lawyers, judges, or experts in the field, knows what compliance with the law looks like.
In a tweet, Paxton called the ruling a “BIG WIN against BIG TECH,” adding, “I look forward to continuing to defend the constitutionality of HB 20.” The state law says that a “social media platform may not censor a user” based on the user’s “viewpoint” and defines “censor” as “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” The Texas attorney general or users can sue social media platforms that violate this ban and win injunctive relief and reimbursement of court costs, the law says.
Judges “Struggle With Basic Tech Concepts”
Oral arguments were held on Monday this week, and the judges “seemed to struggle with basic tech concepts,” Protocol reported. Judges were skeptical about arguments made by NetChoice and CCIA, tech industry associations that sued Texas to block the law. Protocol stated that one judge suggested Twitter wasn’t even a website and another asked if phone companies had a First Amendment right for people to be kicked off their services.
“Your clients were internet providers,” Judge Edith Jones told NetChoice’s lawyer. “They are not websites.” The two groups’ members are in fact almost entirely websites and online services rather than internet service providers–see NetChoice’s members here and CCIA’s here. Both groups include Amazon, eBay and Yahoo.
Another point of the hearing was that Judge Andrew Oldham suggested to Protocol that, if tech platforms succeed, it would allow phone firms to kick off users.” Protocol reported. Oldham asked, “Is Verizon going to listen to every phone call and terminate any calls that they don’t like?”
Telephone companies are classified as common carriers and regulated by the Federal Communications Commission. No such designation has been applied to websites, though Supreme Court Justice Clarence Thomas has argued that digital platforms could be regulated as common carriers.
CNN tech reporter Brian Fung also detailed the Fifth Circuit judges’ confusion in a Twitter thread. Oldham described it as “extraordinary” that Twitter can ban certain types of speech even though the First Amendment’s freedom-of-expression guarantee is only available to Congress and not private companies. Scott Keller, the lawyer for tech groups, stated that “government doesn’t have the right to dictate what private entities must disseminate and what they can’t,” according to Fung.