Texas 'Censorship' Law Unconstitutional, Tech Industry Tells SCOTUS

A Texas law that prohibits social-media platforms from suppressing users' posts based on viewpoint violates free-speech principles, tech industry groups NetChoice and Computer & Communications Industry Association told the Supreme Court on Thursday.

“Throughout our nation’s history, the First Amendment’s freedoms of speech and press have protected private entities’ rights to choose whether and how to publish and disseminate speech generated by others,” the organizations write.

They argue that the Texas law denies tech companies “editorial control over their own websites,” while also “forcing them to publish speech they do not wish to disseminate.”

The dispute centers on Texas's HB 20, which prohibits social-media platforms with at least 50 million users from removing or suppressing lawful posts based on the viewpoint expressed -- even posts with factually incorrect information about vaccines, or the Holocaust.

That law, like a similar one in Florida, was fueled by right-wing lawmakers' belief that technology companies are especially likely to suppress conservative posts.

A trial judge blocked the Florida law and the 11th Circuit Court of Appeals upheld that decision, ruling that the law likely violated the First Amendment. Florida officials recently urged the Supreme Court to review that decision.

The Texas law was also blocked by a trial judge, but the 5th Circuit Court of Appeals ruled that the law should be reinstated.

“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 a ruling issued in September. That court subsequently said the state should hold off on enforcement, pending a decision from the Supreme Court.

NetChoice and Computer & Communications Industry Association say in their request for Supreme Court review that HB 20 violates the First Amendment, and will also “wreak havoc by requiring transformational change to websites’ operations.”

The groups note that a Facebook executive testified that the company spent “billions of dollars” on content-moderation tools since 2016, and would have to spend almost as much to bring its systems into compliance with the new law.

They add that websites' current editorial policies enable them to suppress spam, bullying and other “harmful content” -- including hate speech and pornography.

“When covered websites have failed to remove such expression, they have lost the goodwill of their viewers and advertisers -- and faced criticism from many others,” the groups write, adding that YouTube lost “millions of dollars” in ad revenue in 2017, after companies noticed their ads were near videos with “extremist” content.

Even though Texas officials are currently barred from enforcing the law, private citizens can -- and have -- brought cases under it.

Meta Platforms currently faces at least two lawsuits accusing it of wrongly suppressing posts based on content. 

Most recently, the secessionist group Texas Nationalist Movement alleged that Meta suppressed links to the organization's website.

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