Meta Platforms, Inc. (FB), Alphabet Inc. (GOOGL, GOOG), and Twitter Inc. (TWTR) face heightened risks of costly litigation after the U.S. Fifth Circuit Court of Appeals ruled, on May 11, 2022, that a Texas law restricting how social media sites can moderate their platforms can go into effect. Meta is the parent of Facebook, while Alphabet is the parent of YouTube.
The Texas law makes it illegal for any social media platform with 50 million or more monthly users in the United States to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression." Legal experts indicate that suits brought under this law can be difficult and costly for targeted companies to defend against, in large part due to ambiguities inherent in the wording of the law.
- A federal appeals court has ruled on May 11, 2022, that Texas law HB 20 can go into effect.
- This law opens major social media platforms to possibly expensive litigation over claims that they are discriminating against certain viewpoints.
- Critics say that the law is too vague and that it actually impinges on First Amendment rights.
- The issue may end up with the U.S. Supreme Court.
Texas Law HB 20
Texas law HB 20 arose out of a longstanding Republican critique that tech platforms discriminate against politically conservative users. The law, with a stated intent to address that imbalance, was blocked in December 2021 by a federal district court judge who ruled that it was unconstitutional under the First Amendment. That decision came several months after a similar law passed in Florida also was blocked for the same reason.
In blocking HB 20 in December 2021, the district court judge found that it "prohibits virtually all content moderation, the very tool that social media platforms employ to make their platforms safe, useful, and enjoyable for users."
In response to that December 2021 ruling, a spokesperson for Republican Texas Governor Greg Abbott said that "[a]llowing biased social media companies to cancel conservative speech is hostile to the free speech foundation America was built on."
Legal experts point out that the law creates great uncertainty about how social media sites will function in Texas. Among other things, it raises questions about what users' online spaces may look like, what content they may find there, and even if social media companies can offer their services in that state.
Until now, major U.S. social networks have been able to rely upon Section 230 of the Communications Decency Act of 1996 (CDA), which limits the liability of online platforms for user-generated content. It is possible that Section 230 may be invoked to preempt the Texas law. It also is possible that the issue may find its way to the U.S. Supreme Court.
How Social Media Platforms May Respond
One option for tech platforms is to cease all algorithmic content filtering or ranking. However, in light of the law's broad language, a plaintiff may argue that a user has been silenced since that person's speech is now no longer visible underneath copious spam. Moreover, removing algorithmic amplification of some content could itself be seen as a demotion, which is illegal under HB 20.
The extreme measure of pulling out of Texas, even if this can be accomplished technically, might present problems of its own for social media platforms. The law also prohibits discriminating against Texans based on their geographic location. Withdrawing from Texas could be seen as such discrimination. Additionally, the advent of virtual private networks (VPNs) raises the prospect of clever litigants claiming that their computer is "Texan" even if that user is physically outside its borders.
New Appeals Against HB 20 Likely
The Computer & Communications Industry Association (CCIA) and tech lobbying organization NetChoice filed suit against Texas shortly after the law was enacted, calling it unconstitutional. Regarding the ruling by the U.S. Fifth Circuit Court of Appeals, CCIA president Matt Schruers said in a statement: "This unexplained order contravenes established First Amendment law. No option is off the table. We will do what is necessary to ensure that the free market, not government fiat, decides what speech digital services do and do not disseminate."
Carl Szabo, vice president and general counsel of NetChoice, said about the May 11 ruling: "In an unusual and unfortunate move, a split 2-1 Fifth Circuit panel lifted the injunction without ruling on the merits and without issuing an opinion explaining the order. Because HB 20 is constitutionally rotten through and through, we are weighing our options and plan to appeal the order immediately."
Scott Wilkens, an attorney with The Knight First Amendment Institute, which filed an amicus brief supporting the social media companies' challenge, issued a statement warning that the May 11 decision "will have terrible consequences for speech online."