A surprise decision by a Texas federal appeals court last week may be the opening salvo of a long and messy trench war in the trial courts of Texas for big social media platforms, such as Facebook and Twitter.
The 5th U.S. Circuit Court of Appeals ruled Friday that the state’s controversial new social media law, HB 20, can go into effect immediately, clearing the way for state residents to sue big social media companies if they believe their posts or tweets were removed for the “viewpoint” they expressed.
The Texas legislature passed HB 20 last year, but the law was quickly blocked from going into effect by a federal judge. Last week a three-judge panel of the U.S. 5th U.S. Circuit Court of Appeals tossed out that preliminary injunction.
The Texas law isn’t so much a thoughtful policy proposal as it is a legal framework for harassing big social media companies, which right-wingers have perennially accused of censoring “conservative” viewpoints. What surprised experts (and very likely the bill’s authors) is that a federal appeals court was willing to overlook the HB 20’s considerable flaws, ambiguities, and jurisdictional conflicts.
“There’s a theory that this is the dog that accidentally caught the car,” says Corbin Barthold, Internet Policy Counsel at the free speech think tank TechFreedom. “If you had asked me six months ago, I would have said no court will take this seriously. But I was wrong.”
In fact, justices on the Texas appeals court seemed decidedly sympathetic to HB 20, and unsympathetic to the social media companies, during the hearing. If the courts are becoming more political in America, that phenomenon just landed in Big Tech’s front yard.
“The courts, even the Supreme Court, now have the potential to make moves that are not knowable,” says Northeastern University professor John Wihbey, who specializes in social media platform ethics. “The courts have become a block box.”
And now only the Supreme Court can reverse the ruling of the Texas appeals court and invalidate HB 20. The tech industry groups NetChoice and the Computer & Communications Industry Association asked the Supreme Court for an emergency review Friday.
If the high court refuses to hear the case, or upholds HB 20, it’ll be only a matter of time before Texans begin filing lawsuits alleging censorship of their political viewpoint. As of Monday, Barthold knew of no new lawsuits filed by Texans against social media companies.
Florida passed a similar law last year, which was also met by an immediate injunction in federal court. Now the DeSantis administration is using the Texas appeals court ruling as fodder in its case to the 11th U.S. Circuit Court of Appeals that Florida’s law should go into effect, too. Other (red) states are considering similar laws.
Free speech proponents say Texas’s HB 20 is over-broad and vague, starting with its definition of “censorship,” which includes any content moderation action to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” By that definition, just the simple act of algorithmically curating a newsfeed might put a platform in the crosshairs of a lawsuit, Barthold says.
Another problem is that a plaintiff could claim that practically any kind of content was censored because of its “viewpoint.” Social networks delete or limit the exposure of many kinds of harmful content, from porn to bullying to incitement of violence. Precious little evidence exists to suggest that they ever remove content purely for its idealogical point of view.
“If I have an ISIS beheading video taken down I could go into court and claim that they took the content down for political reasons,” Barthold says. “I could say ‘you have an anti-ISIS’ viewpoint.” If forced to reinstate the beheading video, the social media company would be complying with the Texas law and, by doing so, breaking one of its own community guidelines restricting violent content.
Had the Buffalo mass murderer‘s manifesto or live video stream (or re-uploads) been posted to a large enough social network (HB 20 applies to networks of 50 million U.S. active monthly users), there is no specific language in the law preventing a Texas plaintiff from suing the network to have the content restored, regardless of its potential harms to the public. (There is some debate about this.) However, especially for the video, the defense could argue persuasively that the content was removed consistent with existing graphic content rules, not for its “viewpoint.”
HB 20 is also surprisingly broad in its legal reach, experts say. It not only bars social networks from moderating practically any kind of political or ideological content, but its language suggests that social networks also cannot remove such content posted by people outside Texas, thereby denying a Texan’s right to see it, according to Barthold. The Constitution contains clear language barring states from passing laws dictating how other states do business.
To make matters worse, the Texas appeals court’s ruling consisted of a single sentence, and contained no discussion of its reasons for overlooking the law’s problematic language.
Most problematically of all, perhaps, is that HB 20 flies directly in the face of a federal law that’s been on the books since 1996: Section 230 in the Communications Decency Act, which protects social media companies from being sued for their content moderation decisions.
HB 20, and laws like it, represent attempts by State House Republicans to strip tech companies of those federal protections. “What they’ve tried to mandate here has been through the courts many times,” Northeastern’s Wihbey says. “We know that interactive computer services (as social platforms are described in the statute) are protected from lawsuits by Section 230—that’s what should prevail here.”
The Texas appeals court did not explain how the state’s new social media law can coexist with Section 230, which, normally, would take precedence.
“It all adds up to the government setting up a conservative censorship system that punishes the most vulnerable members of our society and protects the powerful,” said Oregon Democratic Senator Ron Wyden, who cowrote Section 230, in a statement to Fast Company. “Right now, Section 230 and the First Amendment are the primary obstacles to this extremist agenda becoming the law of the land in half of America.”
“I’ll be working overtime to protect Section 230 in the face of this outrageous attack on fundamental American values,” Wyden adds.
In the near term, if the Supreme Court doesn’t step in, social networks like Facebook/Meta and Twitter could find themselves mired in lawsuits in Texas, Barthold says. The social media companies, in theory, could go nuclear and simply shut off service to any IP address located in Texas. Meta, at least, is very unlikely to do that because of the bad PR it would create for the company in Washington, D.C., and elsewhere.
It’s more likely that the companies will lawyer up, Barthold says, and get ready to fight the barrage of lawsuits one by one, “in the trenches” in Texas courts. The tech company attorneys might also take the procedural route and push for the cases to be transferred to courts in their home states (California, for example), where they’re likely to find more sympathetic ears.