Court Bars Texas From Enforcing 'Censorship' Law -- For Now

A federal appellate court on Wednesday stayed a prior decision that would have allowed Texas to enforce a law prohibiting large tech platforms from suppressing users' posts based on viewpoint.

The stay, issued by the 5th Circuit Court of Appeals, comes two weeks after the groups NetChoice and Computer & Communications Industry Association asked the 5th Circuit to preserve a block on the law until the Supreme Court can weigh in.

The Texas law -- HB 20, which was passed last year -- prohibits social platforms with at least 50 million users from suppressing lawful speech based on point of view expressed.

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.

HB 20, like a similar measure in Florida, was supported by conservatives who contend that Silicon Valley companies are inclined to suppress right-wing views.

NetChoice and Computer & Communications Industry Association sued over the law, arguing that it violates social media companies' First Amendment right to wield editorial control over the content on their platforms, and that it's invalid under Section 230 of the Communications Decency Act (which protects tech companies' ability to moderate content).



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.

Texas then appealed to the 5th Circuit, which found the law constitutional.

“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 in an opinion issued last month.

NetChoice and the Computer & Communications Industry Association said they planned to seek review by the Supreme Court, and asked the 5th Circuit to stay its decision.

The groups argued that allowing enforcement of the Texas law threatens their members with “irreparable harm.”

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 tech groups wrote in their request for a stay.

“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 added.

Texas did not oppose the groups' request.

NetChoice and the Computer & Communications Industry Association also challenged Florida's social media law, which would subject social media companies to fines of $250,000 per day for “deplatforming” accounts of 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.

That law also prohibits social media companies from “censoring,” “deplatforming” or “shadow banning” journalistic enterprises, based on content.

Another provision requires tech companies to disclose content-moderation policies.

The 11th Circuit Court of Appeals recently ruled that the bulk of Florida's law likely violated the First Amendment, and blocked the parts restricting content moderation. But that court allowed the state to enforce some provisions requiring tech companies to disclose their content policies.

Florida officials recently asked the Supreme Court to review the 11th Circuit's decision. NetChoice and the Computer & Communications Industry Association have said they will also seek Supreme Court review.

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