5th Circuit upholds Texas law forbidding social media ‘censorship’ — again

A Texas law that bans social media companies from censoring users’ viewpoints is constitutionally allowed, the 5th Circuit Court of Appeals ruled on Friday, in a blow to Facebook, Twitter and Google.

The ruling is a win for Texas Gov. Greg Abbott and Texas Attorney General Ken Paxton in their efforts to combat what they call censorship of conservative viewpoints by social media companies.

Despite the ruling, the Texas law does not immediately take effect; it will do so once the appeals court issues written instructions to the district court that had decided the case.

The law, H.B. 20, had previously been blocked from taking effect by a May 5-4 Supreme Court ruling, which had granted an emergency request by tech trade groups NetChoice and the Computer and Communications Industry Association, which represent Facebook, Twitter and Google. The trade groups have alleged the Texas law violates the First Amendment rights of the companies they represent.

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” Andrew Oldham, a Donald Trump appointee who had previously served as Abbott's general counsel, wrote in the 5th Circuit's decision.

In a tweet, Paxton said, "I just secured a MASSIVE VICTORY for the Constitution & Free Speech in fed court: #BigTech CANNOT censor the political voices of ANY Texan!"

NetChoice Vice President and General Counsel Carl Szabo said in a statement that his organization plans to appeal: "We remain convinced that when the U.S. Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms, and apps."

CCIA President Matt Schruers said, "We strongly disagree with the court’s decision. 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."

Netchoice and the CCIA have argued that the First Amendment protects social media platforms' ability to curate content, much like a newspaper does.

Oldham dismissed this argument, writing in the decision, "We reject the Platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee. The Platforms are not newspapers. Their censorship is not speech."

Edith Jones, a Ronald Reagan appointee who concurred in the largely 2-1 decision, was even more scathing, calling NetChoice's argument "ludicrous."

However, Leslie Southwick, the third judge on the appeals court panel (nominated by George W. Bush), dissented, arguing that social media platforms are indeed similar to newspapers. "The First Amendment, though, is what protects the curating, moderating, or whatever else we call the Platforms’ interaction with what others are trying to say. We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech. None of the precedents fit seamlessly. The majority appears assured of their approach; I am hesitant."

Texas’ law, were it to go into effect, could drastically change the way social media companies operate by restricting their ability to police their platforms and forcing the platforms to keep up content that could violate their hate speech rules.

It would allow both the state of Texas and individual Texans to sue companies if they “censor” an individual based on their viewpoints or their geographic location by banning them or blocking, removing or otherwise discriminating against their posts.

Heather Greenfied, a CCIA spokesperson, said the organization is "evaluating options."

Such options include filing for a rehearing in the 5th Circuit or appealing again to the Supreme Court.

The 5th Circuit decision conflicts with a May opinion by the 11th Circuit which held that major provisions of a similar social media law in Florida violate the First Amendment.

These conflicting rulings could be cause for another appeal to the Supreme Court, whose May ruling did not touch on the merits of the underlying Texas case.