• by Wendy Davis , December 7, 2021

Texas Attorney General Ken Paxton on Monday asked a federal judge to lift his injunction prohibiting the state from enforcing a new law that restricts social media companies' ability to moderate content.

The law (HB 20), which had been slated to take effect this month, would prohibit Facebook, Twitter and YouTube from “censoring” posts based on “viewpoint.”

Last week, U.S. District Court Judge Robert Pitman in Austin blocked the measure as unconstitutional.

On Monday, Paxton appealed Pitman's ruling to the 5th Circuit Court of Appeals, and also asked Pitman to lift the injunction while the appeal is pending.

“Respectfully, this court’s preliminary injunction failed to afford the state the deference to which it is entitled in passing laws that protect its citizens from discrimination, deception, and obstructed public forums,” Paxton argues.

He adds that the injunction is causing “irreparable injury” to the state of Texas.

“Enjoining state officials from carrying out validly enacted laws imposes irreparable harm,” he writes. “The State has an interest in enforcing its laws.”

The Texas law, which was signed by Governor Greg Abbott in September, would allow companies to remove illegal content, but require them to host a large variety of lawful-but-objectionable speech.

A proposed amendment that would have explicitly allowed the companies to remove vaccine misinformation failed, as did a proposed amendment that would have explicitly allowed companies to take down posts denying the Holocaust.

The industry groups NetChoice and the Computer & Communications Industry Association sued to block enforcement, arguing that it violates the First Amendment by “striking at the heart of protected expression and editorial judgment.”

Paxton countered that state lawmakers designated Facebook, YouTube and Twitter as “common carriers” -- meaning comparable to utility companies. He argued that as “common carriers,” the social platforms don't have the same kinds of First Amendment rights as non-common carriers.

Last week, Pitman sided with the tech industry.  “HB 20’s prohibitions on 'censorship' and constraints on how social media platforms disseminate content violate the First Amendment,” Pitman said in a 30-page ruling.

He added that the law “restricts social media platforms’ First Amendment right to engage in expression when they disagree with or object to content.”

Pitman also rejected Paxton's argument that social media platforms are common carriers, noting that social media companies -- unlike telecoms and other traditional utilities -- exercise editorial control over their platforms.

“This court is convinced that social media platforms, or at least those covered by HB 20, curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content,” he wrote.

Texas isn't the only state to attempt to control how large social platforms moderate content. Earlier this year, Florida passed a law subjecting social media companies to fines of $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 blocked the bulk of the law earlier this year, ruling it probably violated the 1st Amendment.

Florida officials recently urged the 11th Circuit Court of Appeals to reverse Hinkle's ruling and allow the law to take effect.

In both states, the laws were championed by Republican governors who accused the social media platforms of “censoring” conservative views -- despite a lack of evidence that tech companies disproportionately suppress right-wing opinions.