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Fifth Circuit Court of Appeals Lifts Block on Texas’ Social Media Platform Censorship Law

A Texas law that prohibits large social media platforms from censoring users’ viewpoints has been upheld by the Fifth Circuit Court of Appeals.

The court also removed a block on the law’s implementation.

As written, the 2021 law applies to social media platforms with 50 million or more monthly active users.

It requires social media platforms to publish an acceptable use policy and remove content that violates the policy. 

The law also gives the Texas Attorney General or an individual user the right to bring a legal action against a platform. 

NetChoice and the Computer and Communications Industry Association’s court challenge is now likely headed to the U.S. Supreme Court.

Texas GOP lawmakers passed HB 20 by St. Rep. Briscoe Cain, R-Baytown, during a special session, saying large social media platforms are biased against expression of conservative opinions.

Courts had blocked the law from implementation since last year. 

In a 2021 ruling, U.S. District Judge Robert Pitman said social media platforms had a right to moderate content under the First Amendment and deemed aspects of HB 20 “prohibitively vague.”

The Fifth Circuit Court of Appeals disagreed, saying “We reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” and that the plaintiffs want the ability to “muzzle free speech.”

Bill author Cain and others say conservative views are being squashed online without the law, but opponents say it will legalize hate speech.

“Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk,” said Matt Schruers, president of the Computer and Communications Industry Association. 

“‘God Bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same.”

In a post this week, attorney David Oxenford with TAB Associate member law firm Wilkinson Barker Knauer said “the Court determined, among other things, that regulating censorship is not subject to the same First Amendment protections as regulating speech and that Texas was justified in concluding the platforms were ‘common carriers’ required to allow all people to access their services without discrimination.  

This decision seems to contradict that of the 11th Circuit finding a similar Florida statute to be unconstitutional.”

So why should broadcasters care about the outcome in this case?

“These contradictory holdings may well lead to the Supreme Court resolving the extent to which states can regulate the content moderation policies of tech platforms,” said Oxenford. 

“Even a limited decision could affect broadcast stations active on platforms like Twitter, Facebook, and Instagram.”

TAB will update broadcasters as court developments warrant.

Questions? Contact TAB’s Michael Schneider or call (512) 322-9944. 

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