Here Is Why a Federal Judge Blocked Enforcement of the Texas Social Media Law
A Texas law that purports to restrict the moderation decisions of social media platforms was scheduled to take effect yesterday. That did not happen, because the day before a federal judge in Austin issued a preliminary injunction blocking enforcement of the law, which he said clearly violates the First Amendment—something that Gov. Greg Abbott and the many other Republicans who supported the law should have recognized long before it was challenged in court.
“Too many social media sites silence conservative speech and ideas and trample free speech,” Abbott complained on one of those social media sites in March, explaining why he wants to constrain their decisions. “Our country’s public square has become increasingly controlled by a few powerful companies that have proved to be flawed arbiters of constructive dialogue,” he said in a September 22 Washington Post op-ed piece. He argues that H.B. 20, which he signed into law on September 9, “protects Texans from wrongful censorship” and thereby upholds their “first amendment rights.”
To the contrary, U.S. District Judge Robert Pitman says in his decision granting a preliminary injunction against the law, “HB 20’s prohibitions on ‘censorship’ and constraints on how social media platforms disseminate content violate the First Amendment.” That’s because the First Amendment protects the right of privately operated platforms like Facebook, Twitter, and YouTube to decide for themselves what sort of speech they want to host.
Pitman was responding to a lawsuit that two trade associations, NetChoice and the Computer & Communications Industry Association, filed in September. They argued that H.B. 20 unconstitutionally interfered with their members’ editorial discretion. Texas simultaneously argued that Facebook et al. don’t really exercise editorial discretion and complained about the way they use it.
H.B. 20 would have made it illegal for “social media platforms” to “censor” content based on the “viewpoint” of the author or the post. It defines “social media platforms” to exclude services with fewer than 50 million active monthly users, meaning the law does not apply to upstart alternatives such as Parler, Gab, and Rumble. The definition also excludes websites that “primarily” offer “news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider,” so H.B. 20 does not apply to mainstream (or alternative) news outlets even when they host reader comments.
The law defines “censor” to include any effort to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” It makes a few exceptions: Platforms are allowed to suppress “expression that directly incites criminal activity,” “specific threats of violence” that target people based on their membership in certain protected categories, and 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.”
Otherwise, the law’s reach is vast. As the plaintiffs in this case noted, H.B. 20 “would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.”
H.B. 20 authorizes any Texan or anyone doing business in Texas who “shares or receives expression in this state” to seek injunctions against alleged violations of the law. It also authorizes the state’s attorney general to sue platforms for “a violation or a potential violation.” In either case, the plaintiff is entitled to recover attorney’s fees.
Evaluating the constitutionality of this scheme, Pitman notes that “social media platforms have a First Amendment right to moderate content disseminated on their platforms.” He cites three Supreme Court decisions in support of that conclusion.
In the 1974 case Miami Herald Publishing Company v. Tornillo, the Court held that a Florida law giving political candidates a “right of reply” to published criticism was unconstitutional. In the 1986 case Pacific Gas & Electric v. Public Utilities Commission of California, the Court said California could not force a utility company to distribute a third-party newsletter in envelopes used for bills. And in the 1995 case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Bost
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