Texas' HB 20 severely limits social media companies' ability to moderate content on their platforms. CCIA and NetChoice sued, and a Texas district court handed them an initial victory this week.

news, digital life, social media

UPDATE: A Texas court has blocked HB 20 from going into effect on Dec. 2 as the lawsuit from the Computer & Communications Industry Association (CCIA) and NetChoice proceeds.

The Texas district court declined to state’s request to dismiss the case entirely in order to determine “whether social media platforms exercise editorial discretion or occupy a purgatory between common carrier and editor.” It then granted a preliminary injunction, noting in its decision that “social media platforms have a First Amendment right to moderate content disseminated on their platforms.”

Judge Robert Pitman seems skeptical of the state’s argument. “User-generated content on social media platforms is screened and sometimes moderated or curated. The State balks that the screening is done by an algorithm, not a person, but whatever the method, social media platforms are not mere conduits,” the ruling says.

“This ruling upholds the First Amendment and protects internet users. Without this temporary injunction, Texas’s social media law would make the internet a more dangerous place by tying the hands of companies protecting users from abuse, scams, or extremist propaganda,” CCIA President Matt Schruers said in a statement.

“Today’s outcome is not surprising. 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,” he added.

Original Story 9/23:The Computer & Communications Industry Association (CCIA) and NetChoice this week filed suit to overturn a Texas law that bans many social-media platforms from interfering with users’ posts based on their viewpoint.

The complaint filed by CCIA and NetChoice in US District Court for the Western District of Texas against Republican Texas Attorney General Ken Paxton alleges that the Texas law, House Bill 20, violates multiple parts of the Constitution, starting with the First Amendment’s prohibition of laws “abridging the freedom of speech, or of the press.” 

HB 20, signed into law by Republican Gov. Greg Abbott on Sept. 9, prohibits many forms of content moderation at social platforms with more than 50 million US monthly average users. 

news, digital life, social media

Texas Gov. Greg Abbott

Its text says they “may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: (1) the viewpoint of the user or another person; (2) the viewpoint represented in the user’s expression; or (3) a user’s geographic location in this state or any part of this state.”

“Censor” means “to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” 

(“Trump” appears nowhere in the law’s text, but it reads as a response to social sites banning the former president after his encouragement of the Jan. 6 insurrection and repeated lies about his loss in the 2020 election.)

The law permits few exceptions: Social platforms can block material that federal law allows them to censor, that has been flagged by organizations fighting sexual exploitation of children, that “directly incites criminal activity or consists of specific threats of violence” targeting people’s “race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge,” or is “otherwise unlawful.”

HB 20 also mandates that social platforms publish transparency reports about content moderation (Twitter and Facebook already do that), document moderation policies, and provide prompt appeals processes.

Short Version: That’s Not How Any of This Works

The lawsuit says the First Amendment does not allow the government to force a publisher to carry anybody else’s speech, yet HB 20 would “compel a select few platforms to publish speech and speakers that violate the platforms’ policies.” 

It also references Section 230 of the Communications Decency Act of 1996, which encourages sites to moderate as they see fit by waiving their liability for removing legal speech they find “otherwise objectionable.”

news, digital life, social media

Mark Zuckerberg testifies at a Section 230 hearing in October 2020.

The suit decries HB 20’s narrow exceptions, saying the law would require social sites to keep up  “pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.” It further notes the business-model problem of keeping sites afloat without content moderation: “advertisers will not permit their products and services to be displayed in an editorial context of harmful or offensive content.” 

(In practice, many ad networks automatically put their ads on bigot-friendly sites anyway.)

Florida passed an analogous social-media law in May; CCIA and NetChoice sued to overturn it in the US District Court for the Northern District of Florida, and on June 30 Judge Robert Hinkle issued a preliminary injunction finding it unconstitutional.

In a Wednesday Washington PostWashington Post op-ed, Gov. Abbott defended the law as a necessary response to cases of overreach, like when Twitter briefly blocking access to a New York Post story about Hunter Biden’s lost laptop. He argues that the biggest social sites deserve regulation as common carriers, a category traditionally reserved for phone companies.

“But Twitter, Facebook and other massive platforms aren’t just any private companies,” he wrote. “They are our modern-day public square, and effectively control the channels we use for discourse.” 

Abbott did not cite numbers for that, but in April, the Pew Research Center reported that while 81% of US respondents said they “ever” use YouTube and 69% said the same about Facebook, no other social platform cracked 50%. Instagram came in third at 40%, followed by Pinterest at 31%, and LinkedIn at 28%. Twitter was at just 23%, good for a seventh-place tie with WhatsApp. 


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