The tech industry is urging a federal appellate court to continue
blocking a Texas law that would prohibit Twitter, Facebook and YouTube from suppressing posts based on viewpoint.
The Texas law “unconstitutionally compels platforms to disseminate (and
present on equal terms) all sorts of objectionable speech — including pro-Nazi speech, terrorist propaganda, Holocaust denial, and misinformation,” the organizations NetChoice and
the Computer & Communications Industry Association write in papers filed Wednesday with the 5th Circuit Court of Appeals.
The law (HB20), signed by Governor Greg Abbott in September, allows large social platforms
to remove illegal content, but prohibits them from suppressing lawful speech based on viewpoint — even if the speech is objectionable. The measure only applies to social platforms with at least 50
million users.
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Lawmakers who passed the bill rejected an amendment that would have explicitly allowed the companies to remove vaccine misinformation failed, as well as an amendment
that would have explicitly allowed companies to take down posts denying the Holocaust.
NetChoice and the Computer & Communications Industry Association sued to block the law
earlier this year, arguing it violates tech companies’ First Amendment rights to exercise editorial control over the platforms.
Earlier this month, U.S. District Court Judge Robert Pitman in
Austin ruled in favor or the tech organizations. He said the law violates the First Amendment and blocked enforcement of the measure.
Texas Attorney General Ken Paxton recently urged the 5th
Circuit to lift that block.
Among other arguments, Paxton says large social media companies should be considered “common carriers” — comparable to companies that provide telephone
service, electricity and other utilities — and therefore have no right to suppress users’ posts.
“Texas has a compelling interest in preserving its residents’ ability to
communicate on these modern-day equivalents of yesteryear’s communications common carriers,” he argued.
The tech industry disagrees, writing that social media platforms are not
“common carriers,” noting that websites “have no natural monopoly over physical infrastructure.”
A similar law in Florida was also blocked by a federal judge. That measure would have subjected
large social media platforms to fines of up to $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. (The bill defines deplatforming
as banning a user for more than 14 days, or permanently deleting the users’ account.)
In June, U.S. District Court Judge Robert Hinkle in Tallahassee said the law likely violates the First
Amendment.
Florida officials are appealing that ruling to the 11th Circuit Court of Appeals.
The measures in both states were driven by Republicans’ view that social media companies
are particularly likely to suppress right-wing views — despite a lack of empirical evidence.
“In Texas we will always fight for your freedom of speech,” Abbott said when he signed
the Texas bill. “It is now a law that conservative viewpoints in Texas cannot be banned on social media.”
Researchers who have studied content moderation dispute that the platforms
disproportionately suppress conservative viewpoints.
Earlier this year, New York University’s Stern Center for Business and Human Rights concluded in a report that social media companies
do not systematically discriminate against users or content. The researchers reported that social media platforms “have amplified right-leaning voices algorithmically to reach unprecedented
audiences, often affording conservatives greater reach than liberal or nonpartisan content …….