• by Wendy Davis  @wendyndavis, April 8, 2022

Digital rights organizations and other outside groups are urging a federal appellate court to strike down Texas's new social media law, which prohibits large tech platforms from suppressing speech based on viewpoint.

The Texas law "deprives users of the benefits of common content moderation practices," advocacy groups including the Electronic Frontier Foundation say in a friend-of-the-court brief filed Friday with the 5th Circuit Court of Appeals.

"The First Amendment protects the rights of social media services to publish both user speech and their own speech, regardless of whether they curate it a lot, a little, or not at all (and everything in between)," the Electronic Frontier Foundation and others add.

They are weighing in on a battle over Texas law HB 20, which prohibits social platforms with at least 50 million users from suppressing speech based on viewpoint.

A proposed amendment that would have explicitly allowed the companies to remove false information about vaccines failed, as did a proposed amendment that would have expressly allowed companies to remove posts denying the Holocaust.

Governor Greg Abbott, who has accused tech companies of taking down conservative speech -- despite a lack of proof that right-wing posts are disproportionately suppressed -- signed the law in September.

The tech industry groups NetChoice and Computer & Communications Industry Association challenged the measure in court. The groups argued that the law violates social media companies' First Amendment right to wield editorial control over the material they publish, and that the measure is invalid under Section 230 of the Communications Decency Act (which includes a provision protecting tech companies' ability to moderate content).

Pitman ruled in December that the law violated the First Amendment and issued an injunction that blocked enforcement.

Texas recently urged the 5th Circuit to lift that injunction. Among other arguments, Texas said big tech companies should be treated as common carriers -- comparable to telephone companies or railroads -- which are not allowed to refuse service to people based on their opinions.

The Electronic Frontier Foundation and other groups on Friday asked the appellate judges to reject Texas's arguments.

They argue that even though some users "are understandably frustrated and perplexed by how social media companies curate users’ speech," users benefit when the platforms are free to make editorial decisions.

The Texas law "takes those protections away and forces platforms to host speech inconsistent with their editorial vision,” the organizations write.

The groups add that although the law only applies to large platforms, smaller niche sites could also be affected.

“Every service starts small, but many grow rapidly, and almost all hope to grow rapidly: TikTok needed only five years to surpass 1 billion active monthly users,” the digital rights groups write.

“Every online service must account for such growth at its earliest stages,” they add. “A radical revision of its editorial policy as it approached a state’s size threshold would defeat the expectation of its users.”

The nonprofit TechFreedom also weighed in against the law. That group argues in a friend-of-the-court brief that tech platforms shouldn't be treated as equivalent to utility companies.

“Social media websites -- even large ones -- are nothing like common carriers,” TechFreedom writes in a friend-of-the-court brief.

The organization adds that social media sites don't have the same ability as railroads or other utility companies to use land they don't own, and don't present themselves as “willing to serve the public indiscriminately.”

“Rather, they serve the public subject to various rules of conduct -- rules that reflect the sites’ normative judgments about what expression they wish to foster or are willing to tolerate,” the group writes.

TechFreedom adds that even if social media services were comparable to utility companies, HB 20 would still be invalid.

"Common carriers have always been entitled to refuse service to anyone who misbehaves, disrupts the service, harasses other patrons, and so on," the group argues. "Because HB20 tries to force websites to serve even such people, it is not itself a proper common carriage regulation."

The 5th Circuit will hold arguments in the case in New Orleans on May 9.

Texas isn't the only state attempting to regulate social media. Last year, Florida passed a law that would have fined social media platforms up to $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. (The bill defines deplatforming as banning a user for more than 14 days, or permanently deleting the users' account.)

U.S. District Court Judge Robert Hinkle in Tallahassee said that law likely violates the First Amendment and blocked enforcement.

Florida officials have appealed that ruling to the 11th Circuit Court of Appeals, which has scheduled a hearing for April 28 in Montgomery, Alabama.