• by Wendy Davis  @wendyndavis, April 22, 2022

Texas Attorney General Ken Paxton is pressing an appellate court to uphold the state's new social media law, which prohibits large online companies from suppressing speech based on viewpoint.

In papers filed Friday with the 5th Circuit Court of Appeals, Paxton argues that large web platforms are “analogous to common carriers” -- such as telephone companies -- and can therefore be required to host all speech.

“Like the platforms, the old telegraph and telephone companies sought to engage in censorship ... but nevertheless were barred from discriminating among messages,” the attorney general's office writes. “The Hosting Rule is just a 21st Century common-carriage rule for a 21st Century common carrier.”

Paxton's latest papers come in advance of a May 9 hearing before the 5th Circuit.

He is urging the court to uphold the new Texas law, which prohibits social platforms with at least 50 million users from removing or suppressing lawful speech based on the viewpoint expressed -- even if the posts are objectionable.

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

U.S. District Court Judge Robert Pitman in Austin blocked enforcement of the law last year, at the request of tech industry groups NetChoice and Computer & Communications Industry Association, which challenged the measure as unconstitutional.

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

Texas is now urging the 5th Circuit to reverse Pitman's ruling and allow enforcement.

In addition to arguing that the platforms are comparable to utility companies, Paxton's office contends that the law doesn't implicate the First Amendment on the theory that it regulates the platforms' “conduct,” as opposed to their speech.

“The Hosting Rule does not regulate the platforms’ own speech -- it regulates only specific actions the platforms may take against 'user' speech,” Texas argues.

But the tech industry says the First Amendment enables companies to decide for themselves what material to allow on their websites.

“At core, platforms publish speech,” the groups write in papers filed earlier this month with the 5th Circuit.

“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 added, quoting from a prior Supreme Court decision.

Texas isn't the only state to attempt to regulate social media.

Florida also passed a law last year that prohibits large social media platforms from banning (or suspending for more than 14 days) candidates for statewide political office.

A federal judge blocked that law last year.vFlorida appealed that ruling to the 11th Circuit Court of Appeals, which is scheduled to hear arguments in the matter on April 28.