• by Wendy Davis  @wendyndavis, April 4, 2022

A new Texas law that prohibits social media platforms from suppressing speech based on viewpoint marks an “unprecedented attack on private editorial freedom,” the tech industry argues in a new court filing.

The law (HB 20) requires large tech companies to “publish, display, and even recommend all sorts of speech that they deem objectionable,” NetChoice and Computer & Communications Industry Association, write in papers filed Friday with the 5th Circuit Court of Appeals.

The groups add that if allowed to take effect, the measure “would prohibit YouTube’s recent decisions to stop publishing speech from Russian state media amid the invasion of Ukraine.”

“No American government may force private companies to disseminate the propaganda of a foreign power,” the organizations write.

NetChoice and Computer & Communications Industry Association are urging the appellate court to uphold an injunction against enforcement issued last year by U.S. District Court Judge Robert Pitman in Austin.

The Texas law, signed by Governor Greg Abbott in September, prohibits social platforms with at least 50 million users from suppressing lawful speech based on viewpoint -- even if the speech is objectionable. 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.

Pitman blocked enforcement on the grounds that the law violated social media companies' First Amendment right to control the material on their platforms.

Texas is appealing that decision to the 5th Circuit. Among other arguments, the state contends that large tech companies should be treated as common carriers -- comparable to telephone companies, which aren't allowed to refuse service to people based on their opinions.

NetChoice and Computer & Communications Industry Association are urging the appellate court to uphold the injunction.

They argue that the First Amendment protects companies' decisions about what material to allow on their services.

“At core, platforms publish speech,” the groups write.

“Forcing a platform to disseminate speech it finds objectionable requires the platform to 'alter the expressive content of' its message, which flouts the First Amendment’s core rule 'that a speaker has the autonomy to choose the content of his own message,'” the groups add, quoting from a prior Supreme Court decision.

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