{"id":274533,"date":"2022-09-27T11:00:49","date_gmt":"2022-09-27T05:30:49","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=274533"},"modified":"2022-09-27T11:00:49","modified_gmt":"2022-09-27T05:30:49","slug":"us-court-of-appeals-fifth-circuit-texas-social-media-law-prohibit-social-media-portal-censoring-the-viewpoint-of-speaker-constitutional-valid-legal-news-legal-updates","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2022\/09\/27\/us-court-of-appeals-fifth-circuit-texas-social-media-law-prohibit-social-media-portal-censoring-the-viewpoint-of-speaker-constitutional-valid-legal-news-legal-updates\/","title":{"rendered":"US Court of Appeals- 5th Circuit | Texas’ social media law prohibiting platforms from censoring speech based on the viewpoint of its speaker, held constitutional"},"content":{"rendered":"
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United States Court of Appeals for the Fifth Circuit<\/span>: While determining the constitutionality of Texas statute- House Bill 20<\/i>, 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*<\/span>, JJ., rejected the platforms' attempt to extract a freewheeling censorship right from the Constitution's free speech guarantee<\/i>. 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.<\/p>\n

Facts of the Case<\/span>: The case revolves around House Bill- 20<\/span>, 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.<\/i>” It was further found that “social media platforms with the largest number of users are common carriers by virtue of their market dominance”.<\/i> <\/p>\n

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<\/span>.<\/p>\n

Provisions of HB-20 Relevant to the Case-<\/p>\n

Section 2 <\/span>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<\/i>”; secondly, “biannual transparency report<\/i>” 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.<\/p>\n

Section 7<\/span> 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.<\/p>\n

Legal Trajectory<\/span>: 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.<\/p>\n

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<\/i>” by disincentivizing viewpoint-based censorship. <\/p>\n

However, the District Court did not explain how the facial challenge to constitutionality of Sections 2 and 7 was appropriate.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Observations<\/span>: While reviewing the findings and injunction of the District Court, the Circuit Judges observed that-<\/p>\n