SCOTUS May Rule On Texas Law Targeting Anti-Conservative Bias
On Friday, May 13, two technology trade associations, NetChoice and the Computer & Communications Industry Association (CCIA), petitioned the U.S. Supreme Court to stay a Texas law barring social media companies from removing, deprioritizing, demonetizing, or banning content based on the viewpoint of the user. A lower court had imposed an injunction on the law last year, saying that the law’s limits on how social media platforms can disseminate content “violate the First Amendment." That injunction was overturned by an appeals court on Wednesday.
Texas’s HB 20 is one of several state efforts seeking to penalize social media companies for allegedly moderating the accounts of conservative users. It requires tech companies to publicly explain why they removed or downgraded particular posts, establish “an easily accessible complaint system,” and empowers the state and individuals to sue companies for allegedly censoring users.
Last year, a judge issued an injunction against a similar Florida law, SB 7072, that prevents social media platforms from banning or annotating posts from Florida political leaders and authorizes fines if they do. It also specifically exempts companies that own theme parks from its requirements.
Aside from potentially violating the First Amendment, legal experts warn that such laws could conflict with Section 230 of the Communications Decency Act, which is the foundation on which all content moderation has been built.
The debate comes as a bipartisan group of Senators are advancing the American Innovation and Choice Online Act (AICOA). The antitrust measure is aimed at preventing large companies from self-preferencing their own products and services, but digital rights groups like Free Press have expressed concerns that it would “require platforms to host hate speech and other harmful content targeting Black and Brown people, the LGBTQIA+ community, women, immigrants, Indigenous people and other targeted populations,” because of ambiguous non-discrimination language written into the bill. As Free Press explains, “[The AICOA] opens the door to arguments that covered platforms are unlawfully discriminating against hate-and-disinformation purveyors by taking them down. State AGs and future FTC officials charged with enforcing this bill could easily but falsely paint apps like Parler or businesses like Infowars as ‘similarly situated’ to other apps and sites that remain available on the covered platforms.”
RESPONSES
Mike Masnick, writer and editor for Techdirt, tweeted, “So, it's quite likely that Twitch removing [the Buffalo shooter’s] channel violates Texas' new social media content moderation law, which is now in effect. Just to give you a sense of how messed up the law is.”
evelyn douek, a fellow at the Knight First Amendment Institute, tweeted, “It's not obvious to me that the Texas social media law would require platforms to carry the Buffalo shooting video. Removing it would be a content-based decision for sure, but I don't think it's viewpoint-based.”
Daphne Keller, director of the program on Platform Regulation at Stanford's Cyber Policy Center, tweeted, “Can platforms operating under Texas’s new law take down the vile Buffalo video, or posts extolling it, or “replacement theory” posts? NO ONE KNOWS. That’s the answer. It’s a law that’s open to interpretation. Local Texas judges will decide. And can all reach different answers.”
She continued, tweeting, “But for platforms deciding whether to be openly noncompliant, this prevents a stark, high-stakes internal test case. I can’t imagine they’ll choose to leave this garbage up. And maybe that precedent becomes a factor shaping their overall Texas strategy.”
In a statement, the Electronic Frontier Foundation wrote a response to a federal appeals court lifting the lower court’s injunction blocking HB20. They said: “This decision to allow the law to be enforced before the court has ruled on its legality is wrong. It creates great uncertainty, will likely spawn numerous lawsuits, and will chill protected speech, all to the detriment of users of large social media sites in the US and everywhere.”
They continued: “HB 20 is clearly a retaliatory measure aimed at punishing platforms for an alleged anti-conservative bias. As EFF’s brief explained, the government can’t retaliate against disfavored speakers and promote favored ones. Moreover, HB 20 would destroy or prevent the emergence of even larger conservative platforms, as they would have to accept user speech from across the political spectrum.”
Kurt Opsahl, general counsel at EFF and affiliate of the Berkman Klein Center, re-tweeted EFF’s statement, adding: “A critical element of free expression is that the government can’t tell a private party what speech they must say. Content moderation is hard, and platforms mess it up, but the answer is not setting the dumpster on fire.”
The Center for Democracy and Technology re-tweeted an Axios article on HB20, highlighting in the text: “[The] law allows users to sue a social media company if they are blocked from posting or have their posts removed, which civil liberties experts & tech advocates argue would force companies to let problematic speech such as hate & #misinformation stay up.”
CDT also highlighted a statement from Attorney Scott Wilkens of the Knight First Amendment Institute, who filed an amicus brief supporting the social media companies' challenge, and said the appeals court ruling "will have terrible consequences for speech online."
Co-founder of Accountable Tech, Jesse Lehrich, tweeted, “#HB20 is clearly unconstitutional. but unless SCOTUS intervenes, I see no option for platforms with 50M+ US users but to cut their services off in Texas altogether. that captures not just FB/YT/TW, but also IG, Snap, TikTok, Pinterest... maybe Reddit & others?”
Director of Fight for the Future, Evan Greer, tweeted, “the texas social media law is wild. like, yes we all know politicians are clueless and corrupt but somehow there is still a little sliver inside me that expects laws to kinda-sorta-make-sense even if i disagree with them.”