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Wednesday, December 8, 2021

Court Issues Injunction Against Texas Law Restricting Social Media Platform Moderation

Many of you may have been following the law adopted by the State of Texas legislature prohibiting censorship by social media companies like Facebook, Twitter, and others which was the subject of a recent federal lawsuit. The court issued an initial ruling in that case recently, which "stayed" enforcement of the law for now.  Netchoice LLC v. Ken Paxton.

HB 20 makes it unlawful for a “social media platform” (like Facebook, Twitter, etc) to 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. 

HB 20 carves out two content-based exceptions to the law's broad prohibition: 

(1) platforms may moderate content that “is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment,” and 

(2) platforms may moderate content that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.” 

The law authorizes a user who believes a platform has improperly “censored” his or her viewpoint to sue the platform and obtain attorney’s fees. In addition, the Attorney General of Texas can “bring an action to enjoin a violation or a potential violation” of HB 20 and recover its attorney’s fees.

Two trade associations with members that operate social media platforms that would be affected by HB 20 sued the Attorney General for the State of Texas claiming the law violates a variety of constitutional protections, including First Amendment free speech rights and the Fourteenth Amendment’s due process and equal protections clauses, among other claims.

The the court ruled that plaintiffs were entitled to a preliminary injunction to "stay" the law from taking effect. The court held that the plaintiffs had demonstrated a likelihood of success on the merits of their First Amendment claim that the law violated their members' free speech rights. Specifically, the court determined that social media platforms have First Amendment rights to moderate content that is posted and disseminated on their own platforms. The court held that HB 20’s prohibitions on “censorship” and constraints on how social media platforms disseminate content violate the First Amendment. The court noted that these platforms have policies against content that express a viewpoint and that disallowing them from applying their own policies requires platforms to “alter the expressive content of their message.” The court found that because the law would substitute the government's editorial discretion for the private companies over the social media platforms that these companies operate and moderate, it constituted viewpoint discrimination under the First Amendment. The court also found the law to be discriminatory and unconstitutionally vague.

In sum, the court denied the State's motion to dismiss the legal challenge to the Texas law and granted injunctive relief to "stay" enforcement of the law while the challenge proceeded through the court.


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