Commentary

Tech Industry To Ask Supreme Court To Throw Out Texas 'Censorship' Law

Tech industry groups plan to ask the Supreme Court to strike down a controversial Texas law that prohibits large tech companies from squelching users' posts based on viewpoint.

The industry organizations disclosed its plans Thursday, in court papers asking the 5th Circuit Court of Appeals to preserve a block on the measure until the Supreme Court can weigh in. 

The law -- HB 20, passed in 2021 -- prohibits social platforms with at least 50 million users from suppressing lawful speech based on point of view expressed. HB 20, like a similar law in Florida, was driven by conservatives' persistent belief that Silicon Valley companies are inclined to suppress right-wing views.

A proposed amendment that would have allowed removal of vaccine misinformation failed, as did a proposed amendment to allow takedowns of posts denying the Holocaust.

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Platforms with at least 50 million users include not only Facebook and YouTube, but also TikTok, Snapchat, Pinterest and Wikipedia, among others, according to Stanford's Daphne Keller.

The organizations NetChoice and Computer & Communications Industry Association sued over the law shortly after it was passed. A district court judge in Texas blocked enforcement, ruling that the measure likely violated tech companies' First Amendment right to wield editorial control over material on their platforms.

A three-judge panel of the 5th Circuit lifted the block in May, but didn't release a full opinion at the time. 

The Supreme Court then intervened at the request of the tech industry and temporarily nixed the law -- but only until the 5th Circuit came out with its decision.

Earlier this month, a panel of the 5th Circuit finally issued a written decision upholding the law. “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 spurred much criticism for numerous reasons -- including that what the 5th Circuit judges call “censorship,” and the rest of the world calls “content moderation.”

In the U.S., the First Amendment generally prohibits the government from engaging in censorship -- meaning telling people what to say, or not to say. But court after court has said that private companies, unlike the government, have the right to decide what material to allow on their services.

In fact, judges on a different appellate court -- the 11th Circuit Court of Appeals -- recently blocked Florida's comparable social-media law from taking effect.

“We hold that it is substantially likely that social-media companies -- even the biggest ones -- are 'private actors' whose rights the First Amendment protects,” Circuit Judge Kevin Newsom, a Trump appointee, wrote in that case. (Florida officials recently asked the Supreme Court to review that ruling.)

The 11th Circuit judges are hardly the only people to take issue with government attempts to control social media companies.

Santa Clara University law professor Eric Goldman, argues that laws like Texas's HB 20 can themselves be characterized as “censorship” measures.

“It is never 'pro-speech' for the government to dictate the editorial decisions of publishers,” Goldman writes in a lengthy critique of the 5th Circuit's decision. “By coopting the term 'censorship,' the opinion seeks to normalize government censorship.”

Ian Millhiser at Vox.com adds that the Texas law is an “existential threat to the social media industry.”

“Its supposed anti-censorship provisions are so strict that it would likely prevent the major social media platforms from removing content touting Nazism or white supremacy, or even from blocking social media users who engage in campaigns of harassment against other users,” he writes.

NetChoice and the Computer & Communications Industry Association say their members face the prospect of “irreparable harm,” if the Texas law takes effect.

Social media companies “would lose the goodwill that they have developed through their editorial efforts because their websites will become cesspools of expression that they and their users consider vile,” the groups write.

“In the recent past, one of the measurable ways this loss of goodwill manifested was boycotts due to previous instances of harmful, offensive, extremist, and disturbing content found on covered websites -- which caused users and advertisers to leave,” the organizations add.

Texas isn't opposing the groups' motion to maintain a temporary block on the law. The 5th Circuit hasn't yet indicated how it's inclined to rule on the request.

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