• by Wendy Davis  @wendyndavis, September 18, 2022

A federal appellate panel has reinstated a Texas law that prohibits Facebook, YouTube and other big tech companies from suppressing users' posts based on viewpoint.

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” judges on the 5th Circuit Court of Appeals wrote.

The ruling, which is all but certain to be appealed, conflicts with a decision of the 11th Circuit Court of Appeals, which blocked a similar Florida law.

The Texas 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.

The Texas law, like the Florida measure, was largely driven by conservatives' beliefs that tech companies are particularly likely to suppress right-wing speech.

On Friday, Texas Governor Greg Abbott cheered the 5th Circuit's decision, posting on Twitter: “I just secured a MASSIVE VICTORY for the Constitution & Free Speech in fed court: #BigTech CANNOT censor the political voices of ANY Texan.”

Federal Communications Commissioner Brendan Carr, a Republican, also praised the ruling.

“Big court win in the effort to end Big Tech’s unchecked censorship,” he tweeted.

But the law's critics, say it will prevent tech companies from removing some material that's legal, but violates their policies.

“Prohibiting social media sites from taking down harmful content would mean more hate speech, harassment, and misinformation online,” Adam Kovacevich said late Friday in a statement. “Not only is that dangerous, but it throws out years of legal precedent affirming that online platforms have a First Amendment right to decide what appears on their sites.”

Friday's ruling reversed a preliminary injunction against the Texas law that had been issued last year by U.S. District Court Judge Robert Pitman in Austin. Pitman said at the time that the law likely violates tech companies' First Amendment rights to wield editorial control over the material they publish. 

He blocked the law at the request of tech industry groups NetChoice and Computer & Communications Industry Association, which sued over the measure.

Earlier this year, the 5th Circuit judges lifted Pitman's injunction, but the judges didn't issue a written ruling explaining their reasoning until Friday. In the interim, the Supreme Court temporarily blocked the law, but only until the appellate court formally issued its opinion.