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Texas may enforce law banning social media from blocking users based on viewpoints, 5th Circuit says

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A federal appeals court on Friday allowed Texas to enforce a law that generally bans large social media companies from restricting posts based on the viewpoint of the speaker.

The 5th U.S. Circuit Court of Appeals at New Orleans rejected arguments that the Texas law interfered with the companies’ First Amendment rights to exercise editorial discretion. The appeals court called the argument “a rather odd inversion of the First Amendment.”

“The platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech,” the 5th Circuit said in the Sept. 16 opinion. “The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies and banks could cancel the accounts of anyone who sends an email, makes a phone call or spends money in support of a disfavored political party, candidate or business.”

The appeals court reversed a trial judge’s injunction blocking the law from taking effect. The decision is contrary to another decision by the 11th Circuit at Atlanta, which blocked a Florida law banning social media censorship in May. The Florida law bars social media companies from banning political candidates, deprioritizing political messages or censoring content by journalistic enterprises.

The Texas case is before the 5th Circuit for the second time. In May, the appeals court stayed a trial judge’s injunction that blocked the law from taking effect during litigation. Responding to an emergency request, the U.S. Supreme Court vacated the 5th Circuit stay May 31, which meant that the law remained blocked.

The 5th Circuit ruled again in its latest decision by Judge Andrew Stephen Oldham that was mostly joined by Judge Edith H. Jones.

“We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” Oldham wrote. “The platforms are not newspapers. Their censorship is not speech. They’re not entitled to pre-enforcement facial relief. And HB 20 is constitutional because it neither compels nor obstructs the platforms’ own speech in any way. The district court erred in concluding otherwise and abused its discretion by issuing a preliminary injunction.”

HB 20 applies to social media platforms with more than 50 million monthly active users.

The appeals court allowed Texas to enforce two challenged sections of the law. Section 7 says large social media platforms can’t censor a user or a user’s expression based on viewpoint or geographic expression. Section 2 requires social media to disclose how they moderate and promote content and publish biannual transparency reports disclosing mow many times that they took action against content that violates their policies.

Users and the Texas attorney general can sue for declaratory and injunctive relief for violations of Section 7 and can recover attorney fees and investigative costs if they win. Only the Texas attorney general can sue for violations of Section 2.

In a partial dissent, Judge Leslie H. Southwick disagreed with the majority on the First Amendment issue as it relates to Section 7.

“The majority’s perceived censorship is my perceived editing,” Southwick wrote. “The platforms can act with obvious bias. The lack of First Amendment protection for their biases is not so obvious.”

The companies challenging the law are NetChoice and the Computer & Communications Industry Association. The case is NetChoice v. Paxton.

Publications covering the decision include the Washington Post, Bloomberg Law, the Associated Press, Reuters and the Volokh Conspiracy (here and here).

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