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A federal judge has blocked Texas’ new social media censorship law for now

An outline of Mark Zuckerberg in front of a Facebook logo.
Marcio Jose Sanchez
At the heart of the law is a section that would allow users banned from social media platforms for their political views to sue for reinstatement.

A federal court has temporarily blocked Texas' new social media censorship law from going into effect on Thursday, after social media groups argued it violated their constitutional rights.

Two technology trade groups, Net Choice and the Computer and Communications Industry Association, jointly filed the lawsuit weeks after Gov. Greg Abbott signed House Bill 20 into law on Sept. 9.

At the heart of the law is a section that would allow users banned from social media platforms for their political views to sue for reinstatement. If that person can’t find a private attorney, the Texas attorney general may bring a suit on the person’s behalf.

The groups argued that the law would prohibit companies from blocking misinformation, and harmful and offensive content on their platforms.

"Today's outcome is not surprising," read a statement from CCIA President Matt Schruers. "The First Amendment ensures that the Government can't force a citizen or company to be associated with a viewpoint they disapprove of, and that applies with particular force when a State law would prevent companies from enforcing policies against Nazi propaganda, hate speech, and disinformation from foreign agents."

The lawsuit argues that the platforms have a First Amendment right to curate content and decide whether to host specific instances of speech as they see fit.

It contends that HB 20 does not prevent censorship, but rather empowers the state of Texas to police and control online speech.

"At the end of the day, the state of Texas is attempting to tell private actors what can be said in their private businesses," Schruers told Houston Public Media earlier this week. "This law prevents digital services from protecting everyday Texans from bad actors online, and when the state forces digital companies to give what it regards as equal treatment to all viewpoints, not only is that a First Amendment transgression, but it potentially puts the users of digital services at risk."

HB 20 passed largely on partisan lines during the second special legislative session. Republican lawmakers produced the measure in response to Twitter and Facebook shutting down conservative social media accounts, like the ones used by former President Donald Trump.

Democrats have accused Republicans of trying to punish companies that have removed conservatives from their platforms for legitimate reasons.

The bill’s sponsors, including state Sen. Bryan Hughes, R-Mineola, argued that social media platforms are not the functional equivalent of newspapers and broadcast companies. Rather, they are the equivalent of common carriers, such as cable and phone service providers, and are subject to regulation to prevent them from discriminating against customers based on their viewpoints.

The social media companies have argued that they don't operate like common carriers, but that even if they were, such companies also have certain rights.

"The state thinks the phrase ‘common carrier' is like a magic spell that it can utter and then, poof, Harry Potter-like, your First Amendment rights disappear," Schruers said. "It doesn't work like that."

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Abbott announced his support for a precursor of HB 20 in March, arguing that social media companies restricting or banishing conservative users was a violation of free speech.

"Social media sites have become our modern day public squares where information should be able to flow freely, but social media companies are now acting as judge and jury on determining what viewpoints are valid,” Abbott said at the time. “America was built on freedom of speech and healthy public debate, and efforts to silence conservative viewpoints on social media are wrong and weaken public discourse."

Thomas Leatherbury, a partner at the law firm of Vinson & Elkins LLP and director of the First Amendment Clinic at Southern Methodist University, filed an amicus brief supporting the plaintiffs as Texas counsel for the Electronic Frontier Foundation.

"I don't have a First Amendment right to speak everywhere," Leatherbury said. "I don't have a First Amendment right to speak and say what I want to on any of these social media platforms, because they're not the government. They're private companies. They're not state actors. And they can't violate the First Amendment because they're not state actors."

Leatherbury said HB 20 violates not only the First Amendment, but also the federal Communications Decency Act of 1996.

A section of that act prohibits punishment of internet service providers for moderating certain content.

"You have a Texas law that limits and punishes companies for moderating content based on their own terms of use and their own acceptable community standards that directly violates (the act), which prohibits such punishment," Leatherbury said.

This is not the first time Net Choice and the CCIA have teamed up to challenge a social media censorship law.

In May, the two organizations sued to block a similar law enacted in Florida. A federal judge ruled in the groups’ favor, blocking parts of the Florida law found to violate the First Amendment.

Florida Governor Ron DeSantis' administration has since appealed the ruling to the 11th Circuit.

“When the State’s own lawyers can’t explain how the law works or even identify to whom it applies, there’s just no way that Florida’s enforcement of that law would keep users, creators, and advertisers safe from the tidal wave of offensive content and hate speech that would surely ensue,” said Carl Szabo, vice president and general counsel of Net Choice, following the ruling in June.
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Andrew Schneider
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