Texas Attorney General Ken Paxton is pressing a federal appellate court to allow the state to enforce a new law that would prohibit Twitter, Facebook and YouTube from suppressing users' posts based on viewpoint.
U.S. District Court Judge Robert Pitman in Austin blocked the law in early December, ruling that the measure violated tech companies' First Amendment rights to exercise editorial discretion over the material they publish.
Paxton, who is asking the appellate court to reverse that decision, argues in his newest papers that large social media platforms are comparable to utility companies, and therefore lack the right to refuse to host users' speech.
“Government can require Internet platforms to host speech just like it has historically required telegraph, telephone, and cable companies to do so,” Paxton argues in papers filed Thursday with the 5th Circuit Court of Appeals.
He adds that Pitman's injunction against enforcement “is injuring Texas and inflicting significant harm on Texans’ ability to freely speak and receive information.”
The law (HB20), signed by Governor Greg Abbott in September, allows large social platforms to remove illegal content, but prohibits them from suppressing lawful speech based on viewpoint -- even if the speech is objectionable.
The measure only applies to social platforms with at least 50 million users.
NetChoice and the Computer & Communications Industry Association sued to block the law earlier this year, arguing that it violates tech companies' First Amendment right to wield editorial control over content on their sites.
When Pitman ruled that the measure was unconstitutional, he also specifically rejected the state's claims that online social media platforms are “common carriers.”
NetChoice and the Computer & Communications Industry Association recently asked the 5th Circuit to uphold ruling.
Among other arguments, the groups said the law would compel platforms to spread “all sorts of objectionable speech -- including pro-Nazi speech, terrorist propaganda, Holocaust denial, and misinformation.”
The organizations also countered Pitman's argument that they should be treated like common carriers by noting that websites -- unlike companies offering gas, electricity or telephone services -- “have no natural monopoly over physical infrastructure."
A similar law in Florida was also blocked by a federal judge. That measure would have subjected large social media platforms to fines of 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.)
In June, U.S. District Court Judge Robert Hinkle in Tallahassee said the law likely violates the First Amendment.
Florida officials are appealing that ruling to the 11th Circuit Court of Appeals.
The measures in both states were driven by Republicans' view that social media companies are biased against right-wing views -- despite a lack of empirical evidence that tech companies disproportionately suppress conservative speech.