HB20: Social Media Censorship and the Supreme Court – Patently-O

by Dennis Crouch

Texas HB20 treats social media platforms as common carriers, especially those with very large number of users and market dominance. For its purposes, the law focuses on platforms with more than 50 million US monthly users and has a number of disclosure requirements. But, the heart of the new law is its prohibition on censorship.

CENSORSHIP PROHIBITED. (a) A social media platform may not censor a user, a users expression, or a users 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 users expression or another persons expression; or (3) a users 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.

HB 20. The rule has a few exceptions. Censorship appears OK if done to protect intellectual property rights; based upon a request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment or if user expression 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 creates a private right of action for a censored user and also authorizes the state Attorney General to bring action.

The new law was passed by the Republican dominated Texas House and Senate and signed by Gov. Abbott back in 2021. But, before the law became effective a Federal District Court entered a preliminary injunction against its enforcement. Ordinarily, appeals are only proper after final judgment. One exception though is that a district courts decision regarding a preliminary injunction is ordinarily immediately appealable. And so the state of Texas has appealed the Preliminary Injunction to the 5th Circuit.

The news over the past two weeks: On May 9, the 5th Circuit heard oral arguments and two days laterissued a 1-sentence decision staying the preliminary injunction pending appeal (as the State requested). Here, the judges have not issued their final decision on whether the preliminary injunction was proper, but the stay suggests that their final decision will also favor Texas since a key element of relief here is likelihood of success on the merits. Those opposing the law have filed an emergency request with the US Supreme Court to reinstate the preliminary injunction during the appeal. Justice Alito is assigned to the Fifth Circuit region and so is set to decide the emergency petitionhowever, the full court could choose to weigh-in. Briefing in the SCOTUS case from Texas is due on May 18.

So to be clear, the decisions thus far have all focused on preliminary relief whether the law can be enforced while the trial & appeal is ongoing.

In prior cases, the Court has treated social media has an important avenue for speech. In Packingham v. North Carolina, 137 S. Ct. 1730 (2017), for instance, the court found that prohibiting prior sex offenders from all social media violated those individuals speech rights since social media is the modern public square. Id. Here though, it is the social media platforms seeking the right to discriminate freely against viewpoints. Texas presents the argument that social media platforms are not speaking through their editorial role, but rather are taking technological actions to present the speech of others. Of course, publishing and dissemination of speech are also protected by the First Amendment, and those opposed to the law present this as an open-and-shut case.

From the moment users access a social media platform, everything they see is subject to editorial discretion by the platform in accordance with the platforms unique policies. Platforms dynamically create curated combinations of user-submitted expression, the platforms own expression, and advertisements. This editorial process involves prioritizing, arranging, and recommending content according to what users would like to see, how users would like to see it, and what content reflects (what the platform believes to be) accurate or interesting information.

SCT Brief.

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HB20: Social Media Censorship and the Supreme Court - Patently-O