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.