• by Wendy Davis  @wendyndavis, May 11, 2022

A federal appellate panel on Wednesday ruled that Texas can enforce its social media law, which prohibits Twitter, Facebook and YouTube from suppressing users' posts based on viewpoint.

U.S. District Court Judge Robert Pitman in Austin issued a preliminary injunction against enforcement in early December, at the request of tech industry groups NetChoice and Computer & Communications Industry Association.

He said at the time that the measure likely violated tech companies' First Amendment rights to exercise editorial discretion over the material they publish.

On Wednesday, a panel of the 5th Circuit Court of Appeals lifted that block by a 2-1 vote, effectively reinstating the law while the case proceeds. None of the judges have yet issued a written opinion.

The decision to allow enforcement appears to conflict with numerous other judicial rulings that have upheld web companies' right to exercise editorial control over material on their platforms.

The tech industry groups intend to appeal, according to NetChoice lawyer Chris Marchese.

The law, signed by Governor Greg Abbott last year, prohibits social media platforms with at least 50 million users from removing or suppressing lawful speech based on the viewpoint expressed. 

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

NetChoice and Computer & Communications Industry Association argued that the measure should be struck down for numerous reasons, including that it violates social media companies' First Amendment right to wield editorial control over the material they publish, and that it's invalid under Section 230 of the Communications Decency Act (which protects tech companies' ability to moderate content).

Pitman ruled last year that the law likely violated the companies' rights to decide what speech to host and issued a preliminary injunction. He didn't rule on the tech industry's other arguments.

Texas then appealed to the 5th Circuit, where Attorney General Ken Paxton argued that large tech platforms should follow the same "common carrier" rules as telephone companies, which are required to put through calls regardless of subject matter.

The industry-funded policy group Chamber of Progress, which argued against the Texas law in a friend-of-the-court brief, blasted the panel decision Wednesday.

“Platforms won't be able to remove scammers, conspiracy theorists, predators, or white nationalists -- and social media will be forced to turn into a sewer,” Adam Kovacevich, founder and CEO of the group, said on Twitter.

Santa Clara University law professor Eric Goldman, who calls the Texas law "brazenly unconstitutional," says the tech industry has several procedural options for appeal.

“Obviously this is not the final word in the process,” Goldman says.

He adds that among other options, the tech industry can ask the entire 5th Circuit to review the decision, or can attempt to appeal directly to the Supreme Court.

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

Last year, Florida passed a law that would have subjected large social media services 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 user's account.)

The tech industry challenged that measure as well, and in June U.S. District Court Judge Robert Hinkle in Tallahassee blocked enforcement on the grounds that the law said the Florida law likely violates the First Amendment.

Florida officials recently appealed that ruling to the 11th Circuit Court of Appeals, which heard arguments last month.