A surprising decision last week by a Texas federal appeals court could mark the opening salvo of a long and messy trench warfare in Texas courts for major social media platforms, such as Facebook and Twitter.
The 5th U.S. Circuit Court of Appeals ruled Friday that the state controversial new social media lawHB 20, can take effect immediately, paving the way for residents of the state to sue major social media companies if they believe their posts or tweets have been removed because of the “position” they expressed.
The Texas legislature passed HB 20 last year, but the law was quickly blocked by a federal judge. Last week, a panel of three judges on the US 5th US Circuit Court of Appeals rejected that preliminary injunction.
Texas law is not so much a thoughtful policy proposal as it is a legal framework for harassing major social media companies, who are constantly accused by right-wingers of censoring “conservative” views. What surprised experts (and most likely the bill’s authors) is that a federal appeals court was willing to overlook the significant flaws, ambiguities and conflicts of jurisdiction of the HB 20.
“There’s a theory that this is the dog that accidentally took the car,” said Corbin Barthold, Internet Policy Counsel at the free speech think tank TechFreedom. “If you had asked me six months ago, I would have said no court would take this seriously. But I was wrong.”
In fact, during the hearing, the Texas Court of Appeal judges seemed outspokenly sympathetic to HB 20 and unsympathetic to the social media companies. As the courts in America become increasingly political, that phenomenon has just landed in Big Tech’s front yard.
“The courts, even the Supreme Court, now have the potential to make moves that are not known,” said John Wihbey, a professor at Northeastern University who specializes in the ethics of social media platforms. “The courts have become a box of blocks.”
And now only the Supreme Court can overturn the Texas Court of Appeals ruling and invalidate HB 20. Tech industry groups NetChoice and the Computer & Communications Industry Association asked the Supreme Court on Friday for an emergency review.
If the Supreme Court refuses to hear the case, or upholds HB 20, it’s only a matter of time before Texans start filing lawsuits over alleged censorship of their political stance. As of Monday, Barthold was not aware of any new lawsuits filed by Texans against social media companies.
Florida passed a similar law last year, which was also followed by an immediate injunction in federal court. Now the administration of DeSantis using the Texas Court of Appeals ruling as fodder in his case before the 11th US Circuit Court of Appeals that Florida law should also take effect. Other (red) states are considering similar laws.
Free speech proponents say Texas HB 20 is too broad and vague, starting with the definition of “censorship,” including any action to moderate content to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility, or otherwise discriminate against expressions.” By that definition, just algorithmically putting together a news feed can put a platform in the crosshairs of a lawsuit, Barthold says.
Another problem is that a plaintiff could claim that virtually any content was censored because of its “point of view.” Social networks remove or limit the exposure of many types of harmful content, from porn to bullying to incitement to violence. There is precious little evidence to suggest that they ever remove content purely for its idealistic point of view.
“If I have a video of ISIS beheading removed, I can go to court and claim that they removed the content for political reasons,” Barthold said. “I could say ‘you have an anti-ISIS’ stance.” If the social media company were forced to reinstate the beheading video, it would abide by Texas law, violating one of its own community guidelines that curtail violent content.
had the buffalo mass murderer‘s manifest or live video stream (or re-uploads) is posted on a sufficiently large social network (HB 20 applies to networks of 50 million active monthly users in the US), there is no specific language in the law that a plaintiff from Texas from filing a lawsuit prevents the network from having the content reinstated, regardless of the potential harm to the public. (There is some discussion about this.) However, for the video in particular, the defense was able to convincingly argue that the content was removed in accordance with existing graphic content rules, not because of the “point of view”.
HB 20 is also surprisingly broad in its legal scope, experts say. Not only does it prohibit social networks from moderating virtually any kind of political or ideological content, but the language suggests that social networks also cannot remove such content posted by people outside of Texas, thus limiting a Texan’s right to see it. is denied, according to Barthold. The Constitution contains plain language that prohibits states from passing laws that dictate how other states conduct business.
To make matters worse, the Texas Court of Appeals ruling was a single sentence, and included no discussion of reasons for overlooking the problematic language of the law.
Perhaps most problematic of all, HB 20 directly violates a federal law that’s been on the books since 1996: Section 230 in the Communications Decency Act, which protects social media companies from being sued for their content moderation decisions.
HB 20, and similar laws, represent efforts by State House Republicans to strip tech companies of that federal protection. “What they’ve tried to impose here has been through the courts many times,” said Northeastern’s Wihbey. “We know that interactive computing services (such as social platforms are described in the statutes) are protected from lawsuits by Section 230 — that’s what should prevail here.”
The Texas Court of Appeals has not explained how the state’s new social media law can co-exist with Section 230, which would normally take precedence.
“It all boils down to the government setting up a conservative censorship system that punishes the most vulnerable members of our society and protects the powerful,” Oregon Democratic Senator Ron Wyden, co-author of Section 230, said in a statement. businesstraverse.com† “Right now, Section 230 and the First Amendment are the main obstacles to this extremist agenda to become the law of the land in half of America.”
“I will work overtime to protect Section 230 from this outrageous attack on fundamental American values,” Wyden added.
In the short term, if the Supreme Court doesn’t intervene, social networks like Facebook/Meta and Twitter could end up in lawsuits in Texas, Barthold said. The social media companies could in theory go nuclear and simply shut down the service to any IP address in Texas. In any case, it’s highly unlikely that Meta will do that because of the bad PR it would create for the company in Washington, DC and elsewhere.
The companies are more likely to hire attorneys, Barthold says, and prepare to fight the barrage of lawsuits one by one, “in the trenches” in Texas courts. The tech firm’s attorneys may also go the procedural path, pushing for the cases to be transferred to courts in their home state (for example, California), where they are likely to find more sympathetic ears.
