social media law
Case BriefsForeign Courts


United States Court of Appeals for the Fifth Circuit: While determining the constitutionality of Texas statute- House Bill 20, which generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker, the Bench of Edith H. Jones, Leslie H. Southwick and Andrew S. Oldham*, JJ., rejected the platforms' attempt to extract a freewheeling censorship right from the Constitution's free speech guarantee. It was observed that the platforms are not newspapers, and their censorship is not speech. Thus, they are not entitled to pre-enforcement facial relief. It was held that HB 20 is constitutional because it neither compels nor obstructs the platforms' own speech in any way.

Facts of the Case: The case revolves around House Bill- 20, a Texas statute brought in to regulate large social media platforms with more than 50 million monthly active users, such as Facebook, Twitter, and YouTube. HB 20 was conceptualized due to the fact that Texas legislature had observed that the social media platforms “function as common carriers, are affected with a public interest, are central public forums for public debate, and have enjoyed governmental support in the United States.” It was further found that “social media platforms with the largest number of users are common carriers by virtue of their market dominance”.

Net Choice and the Computer & Communications Industry Association, trade associations representing companies that operate platforms covered by HB 20, sued the Attorney General of Texas on 22-09-2021, before HB 20 went into effect.

Provisions of HB-20 Relevant to the Case-

Section 2 imposes certain disclosure and operational requirements on the platforms. Firstly, the platforms must disclose how they moderate and promote content and publish an “acceptable use policy”; secondly, “biannual transparency report” and thirdly must maintain a complaint-and-appeal system for their users. Only the Texas Attorney General may enforce Section 2 and the Attorney General may seek injunctive relief but not damages.

Section 7 of HB-20 A social media platform may not censor a user, a user's expression, or a user's ability to receive the expression of another person based on viewpoint of the user or another person; the viewpoint represented in the user's expression or another person's expression; or a user's geographic location in Texas or any part of Texas. The provision also has a narrow remedial scheme according to which if a social media platform violates Section 7 with respect to a user, then that user may sue for declaratory and injunctive relief.

Legal Trajectory: The District Court issued a preliminary injunction on 01-12-2021. It held that Section 7 is facially unconstitutional stating that social media platforms are not common carriers. It then concluded that platforms engage in some level of editorial discretion by managing and arranging content, and viewpoint-based censorship is part of that editorial discretion. It was thus held that HB 20's prohibition on viewpoint-based censorship unconstitutionally interfered with the Platforms' protected editorial discretion.

The District Court also declared Section 2 to be facially unconstitutional and stated that disclosure and operational provisions are inordinately burdensome given the unfathomably large numbers of posts on these sites and apps. The court reasoned that Section 2 will “chill the social media platforms' speech” by disincentivizing viewpoint-based censorship.

However, the District Court did not explain how the facial challenge to constitutionality of Sections 2 and 7 was appropriate.

The District Court further held that HB 20 discriminates based on content and speaker, because it permits censorship of some content (like specific threats of violence directed at a protected class) and only applies to large social media platforms; and HB 20 fails any level of heightened scrutiny.

Texas when into appeal to put a stay on the preliminary injunction which was granted by the Fifth Circuit. On 31-05-2022, in a 5—4 decision, the Supreme Court vacated the stay. Justice Kagan noted her dissent. Justice Alito, joined by Justice Thomas and Justice Gorsuch, authored a six-page dissenting opinion to argue that the Circuit Court's stay should have remained undisturbed.

Observations: While reviewing the findings and injunction of the District Court, the Circuit Judges observed that-

  • Regarding the power to issue preliminary injunction, the Fifth Circuit observed that a preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. It was pointed out that a District Court abuses its discretion if it grants an injunction based on clearly erroneous factual findings or erroneous conclusions of law.

  • Regarding the constitutional validity of Sections 2 and 7 of HB-20, the Court observed that the social media platforms' real complaint about how HB 20 will be enforced is a purely speculative one. The social media platforms asked a federal court to invalidate HB 20 in its entirety before Texas even tried to enforce it. It was pointed out that pre-enforcement facial challenges to legislative acts are disfavored as the judicial power vested in Courts by Article III does not include the power to veto statutes. It was further observed that a federal court has “no jurisdiction to pronounce any statute, either of a state or of the United States, void, because they are irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies”.

  • It was further pointed out that pre-enforcement challenges are “nettlesome affairs” as such suits usually do not present “flesh-and-blood legal problems with data relevant and adequate to an informed judgment”; instead, they require the courts “to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,” forcing courts to deploy the severe power of judicial review “with reference to hypothetical cases.”

  • Furthermore, it was pointed out that the respect owed to a sovereign State demand that courts look particularly askance at a litigant who wants unelected federal judges to countermand the State's democratically accountable policymakers.

  • Deliberating over HB-20’s implication on First Amendment, the Court pointed out that First Amendment overbreadth doctrine recognizes a type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep. It was observed that the overbreadth doctrine however, does not apply to Section 7, as the provision does not chill speech; instead, it chills censorship. Therefore, there can be no concern that declining to facially invalidate HB 20 will inhibit the marketplace of ideas or discourage commentary on matters of public concern. Section 7 might make censors think twice before removing speech from the Platforms in a viewpoint-discriminatory manner.

    “Texas enacted HB 20 to address the Platforms' evolution into internet censors. Explaining the perceived need for the law, Texas and its amici cite numerous instances in which the Platforms have censored what Texas contends is pure political speech”

  • The Court pointed out that the social media platforms primarily contended that HB-20 should be declared facially invalid because it prohibits the them from censoring “pro-Nazi speech, terrorist propaganda, and Holocaust denials”. To this the Court states that- Far from justifying pre-enforcement facial invalidation, the Platforms' obsession with terrorists and Nazis proves the opposite. The Supreme Court has instructed that in determining whether a law is facially invalid, we should avoid “speculating about ‘hypothetical' or ‘imaginary' cases.

  • The Court observed that Section 7 does not operate as a prior restraint on the platforms' speech. Section 7 also does not prevent anyone from expressing their good-faith opinions on matters of public concern. “Section 7 protects Texans' ability to freely express a diverse set of opinions through one of the most important communications mediums used in that State. And it leaves the Platforms free to similarly opine”.

  • The Court noted that a social media platform is not like a newspaper; they exercise virtually no editorial control or judgment and use algorithms to screen out certain obscene and spam-related content. Section 7 neither compels platforms to speak nor does it do anything to prohibit the Platforms from speaking. Section 7 does not impose a content-based penalty on the platforms' speech. Section 7 does not create a special privilege for those who disagree with its views; rather, it gives the exact same protection to all platform users regardless of their viewpoint.

  • Section 7 serves Texas's important interest in protecting the widespread dissemination of information, is unrelated to the suppression of free expression, and does not burden substantially more speech than necessary to advance Texas's interest. Section 7 therefore satisfies intermediate scrutiny and would be constitutional on that basis even if its censorship prohibitions implicated the platforms' First Amendment rights.

  • Comparing HB-20 with Florida's SB 7072, which sought to protect political candidates and journalistic organizations from censorship by large social media platforms, the Court pointed out that both the laws are different, as SB 7072 only targets censorship of speech by political candidates and journalistic enterprises, as well as censorship of speech “about” political candidates. While HB 20 prohibits some censorship of all speakers. Texas's law permits non-viewpoint-based censorship and censorship of certain constitutionally unprotected expressions regardless of who the speaker is.

  • The Court stated that the First Amendment protects speech and generally prevents the government from interfering with people's speech or forcing them to speak. “The Platforms argue that because they host and transmit speech, the First Amendment also gives them an unqualified license to invalidate laws that hinder them from censoring speech they don't like. And they say that license entitles them to pre-enforcement facial relief against HB 20”.

  • Holding HB- 20 to be constitutional, the Court thus concluded that the District Court erred in concluding otherwise and abused its discretion by issuing a preliminary injunction.

Justice Leslie H. Southwick dissented in part with the decision. Southwick, J., dissented on the application of First Amendment principles to the anti-discrimination provisions of Section 7. The Judge observed that that the majority is forcing the picture of what the platforms do into a frame that is too small. “The frame must be large enough to fit the wide-ranging, free-wheeling, unlimited variety of expression — ranging from the perfectly fair and reasonable to the impossibly biased and outrageous — that is the picture of the First Amendment as envisioned by those who designed the initial amendments to the Constitution”.

[Net Choice LLC v. Ken Paxton, No. 21-51178, decided on 16-09-2022]

*Judge who delivered the opinion

**Sucheta Sarkar, Editorial Assistant has prepared this brief.

Foreign LegislationLegislation Updates

On September 01, 2021, the House Bill (‘HB’) 3746 relating to certain notification required following a breach of security of computerised data entered into effect. The Act amends the state’s data breach notification laws under Texas Business and Commerce Code §521.053.

Key Highlights:

  • Provision has modified to include new notification requirement i.e. organisations are required  to include the number of affected residents that have been sent a disclosure of the breach by mail in their notifications;

Notification must include the following:

    1. a detailed description of the nature and circumstances of the breach or the use of sensitive personal information acquired as a result of the breach;
    2. number of residents of this state affected by the breach at the time of notification;
    3. number of affected residents that have been sent a disclosure of the breach by mail or other direct method of communication at the time of notification;
    4. measures taken by the person regarding the breach;
    5. measures the person intends to take regarding the breach after the notification under this subsection; and
    6. information regarding whether law enforcement is engaged in investigating the breach.

  • Provision inserted requiring the Attorney General (‘AG’) to post on their website a listing of the notifications received by their office, which must be updated no later than 30 days after the AG receives the notification of a new breach of system security; and
  • Provision inserted to require AG to remove the notification no later than one year after the AG first published if the person who provided the notification has not notified the AG of any additional breaches during that period.

You can read the bill here

Foreign LegislationLegislation Updates

After the United States Supreme Court declined the request of urgent stay of Heartbeat Act, 2021, the New Abortion Law comes into force in Texas on September 1, 2021.


Key highlights of the Act are:

  • The Heartbeat Act, 2021 bans abortions if there is a fetal heartbeat that can be detected. It has been in controversy as it bans most abortions after about six weeks of pregnancy as per the medical experts (Act has not specified the weeks).
  • The Heartbeat Act provides that any physician planning to perform an abortion has to check whether the unborn child has a detectable heartbeat. Then if a fetal heartbeat has been detected by the physician, the physician may not knowingly perform or induce an abortion on a pregnant woman.
  • In cases of medical emergencies, an exception has been provided under the Act. However, it will be the decision of the physician to determine what qualifies.
  • A civil liability for violation or aiding or abetting violation can be raised by private citizens. Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:
  • performs or induces an abortion in violation;
  • knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise.
  • The private citizens can be awarded injunctive relief to prevent the defendant from breaking the law and statutory damages for about $10,000 for each abortion, as well as costs and attorney’s fees through the law suit.
  • The lawsuit must be filed within four years of the abortion.

*Tanvi Singh, Editorial Assistant has reported this brief.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a significant decision which can have major repercussions on a woman’s choice to abort in the United States, the full bench of SCOTUS, with a ratio of 5:4, declined to block the Texas law which imposes a near complete ban on abortions. The majority consisted of Amy Coney Barrett, Brett Kavanaugh, Samuel Alito, Neil Gorsuch and Clarence Thomas, JJ.

The Texas Law on Abortion: The instant matter revolved around Senate Bill-8[1] which went into effect on 01-09-2021

  • The legislation puts an embargo on the doctors from performing abortions if they can detect a fetal heartbeat, including the cardiac activity that normally occurs at roughly the sixth week of pregnancy[2].
  • The law excludes the patient from being sued.
  • One of the chief highlights of the legislation is that it delegates the responsibility of the enforcement of the prohibition to the private persons and allows them to bring lawsuits against anyone who provides or aids or abets an abortion – the clinics, doctors and even a cab driver taking a patient to the abortion clinic can become a defendant.
  • Anyone who brings a successful suit can collect atleast $10,000 from the person who is found to have infringed the law.

The Legal TrejectoryOn May 19th 2021, the Governor of Texas signed the law and it was immediately challenged in the court. After the District Court’s denial to the defendants’ motion of dismissal on Aug. 25, they went to the U.S. Court of Appeals for the 5th Circuit. The Court of Appeals granted the defendants’ request to put the district-court proceedings, on hold, and denied the challengers’ request to expedite the appeal, thereby setting the stage for the challengers to seek emergency relief in the Supreme Court.[3]

Contentions: The State of Texas argued that neither they nor their executive employees possess the authority to enforce the Texas law either directly or indirectly.  Furthermore, it is not clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law

Per contra, the applicants stated that the Texan law infringes the constitutional right of a woman to obtain an abortion during the first stage of pregnancy and the delegated enforcement of the law on the private persons appears to be a safeguard to protect the State from responsibility for implementing and enforcing the regulatory regime.

Abortion Rights in the United StatesIn the landmark decision of this Court in Roe v. Wade, 1973 SCC OnLine US SC 20, it was held that a pregnant woman’s fundamental right to choose to have an abortion without excessive governmental restrictions, is part of her Right to Privacy and therefore protected by the US Constitution.

Decades later, the SCOTUS in Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 upheld the former decision but placed the “undue burden standard” on the right.

 Observations: On behalf of the Majority, Justice Samuel Alito observed that an applicant must carry the burden of making a “strong showing” that it is likely to succeed on the merits, that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is con­sistent with the public interest. He noted that the applicants in the instant matter have raised “complex and novel anteced­ent procedural questions”, but they have not carried the aforestated burden. Examining the argument presented by the State of Texas, the Majority refused to issue a stay order on the impugned law. Justice Alito however clarified that this order is not based on any conclusion about the constitutionality of Texas’ law.

Dissenting Opinions: Chief Justice John Roberts along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan filed their opinions.

Chief Justice Roberts, considering the contentions raised by the applicants and terming the Texas law to be “unusual, but unprecedented”, observed that he would grant preliminary relief to preserve the status quo before the law went into effect, so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.

Justice Breyer observed that delegation as provided in the impugned law, threatens to invade a constitutional right, and the coming into effect of that delegation will still threaten imminent harm.

Justice Sotomayor noted that, “The Court’s order is stunning”. In a scathing dissent, she stated that the Majority have decided to “bury their heads in the sand” silently consented in a State’s enactment of a law that flouts nearly 50 years of federal precedents. “The Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women.”

Justice Kagan noted that the Court’s swift disposal of the matter “greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf”.

[Whole Woman’s Health v. Austin Reeve Jackson, No. 21A24, decided on 01-09-2021]

Sucheta Sarkar, Editorial Assistant has reported this brief.

[1] Senate Bill 8

[2] SCOTUS Blog, Texas Abortion Ban

[3] Refer fn. 3

Supreme Court of The United States
Hot Off The PressNews

Supreme Court of The United States: The Court on Friday rejected a bid from Texas’ Attorney General, supported by President Donald Trump, to block the ballots of millions of voters in battleground states that went in favor of President-elect Joe Biden. Texas’ motion for leave to file a bill of complaint was denied due to lack of standing under Article III of the Constitution. The Court further observed that, “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections”. Although, Samuel Alito and Clarence Thomas, JJ., noted that they would have allowed the case to be filed – “I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue”.

In the recently held US Presidential Elections, the “Swing States” of Pennsylvania, Michigan, Georgia and Wisconsin, swung in favour of Joe Biden. The lawsuit was brought by Texas’ Attorney General, Ken Paxton, who sought to sue the abovementioned States and invalidate their election results.

Incumbent President, Mr. Donald Trump and his allies have repeatedly raised allegations of foul play committed during counting of the votes; especially in the “Swing States”.

This is not the first instance of thwarting the Republican Party’s efforts to challenge the legitimacy of the Election results. On 08-12-2020, the SCOTUS in a “one sentence” Order, refused a request from Pennsylvania Republicans to overturn Joe Biden’s victory in the state of Pennsylvania. The Republicans have lost about 50 challenges to the presidential election, as Judges in at least eight states have repeatedly rejected a litany of unproven claims — that mail-in ballots were improperly sent out, that absentee ballots were counted wrongly, that poll observers were not given proper access to the vote count and that foreign powers hacked into and manipulated voting machines.

[Texas v. Pennsylvania, decided on 11-12-2020]

Source: CNN

Sucheta Sarkar, Editorial Assistant has put this story together

Hot Off The PressNews

Governor of Texas Greg Abbott while signing a Senate Bill 21 has increased the age to 21 from 18 to buy cigarettes, e-cigarettes or other tobacco products.

This would mean that anyone under the age of 21 years would not be eligible to buy the above stated.

The only exception that has come into the light is only the people who are military. The legislation would come into effect from 01-09-2019.

Penalty: Anyone caught breaking this new law will face a Class C misdemeanor and a fine of up to $500.

[Source: CNN]

[Picture Credits: Texas Tribune]