Circuit Court’s Ruling on Texas Social Media Law Carries Disastrous Consequences for Platforms and Users

The 5th Circuit Court of Appeals upheld Texas’ social media law on September 16, 2022, with consequences for companies and Internet users across the country. By punishing social media platforms for removing certain content or banning certain users, the law would subject users to a deluge of unwanted objectionable content and force platforms to dedicate more resources toward legal fees and less to innovation and features that would better serve their users.

The Texas law, H.B. 20, prohibits social media platforms with over 50 million monthly active users in the United States from “censoring” users, defined as “to block, ban, remove, de-platform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” Passed by Texas legislators who accuse social media platforms of anti-conservative bias, it also allows users to sue platforms for violations of the law.

The case against H.B. 20 draws partially on Section 230 of the Communications Decency Act, a federal law that states that online services cannot be held liable for removing or failing to remove third-party content. Section 230 explicitly preempts contradictory state and local laws, which should include H.B. 20, since the Texas law would punish social media platforms for removing third-party content.

In addition, plaintiffs NetChoice and the Computer Communications Industry Association (CCIA)—tech trade groups—argued that social media platforms’ content moderation decisions are protected by the First Amendment. As private companies, these platforms have a right to free speech and can choose not to associate with speech they find objectionable. For example, many social media platforms established rules against posting misinformation about the COVID-19 pandemic. This type of misinformation is not illegal, but platforms are within their rights to remove it in order to create a safer, more enjoyable online experience for their user base.

However, the Circuit Court rejected these arguments, ruling that “corporations [do not] have a freewheeling First Amendment right to censor what people say.” This deviates from precedent that has granted First Amendment rights to corporations.

If social media platforms could only remove illegal content, or else risk potentially costly litigation, users could see their timelines flooded with objectionable-but-legal content that most platforms currently do their best to remove, including spam, hoaxes, pornography, violence, and disinformation. Most users would likely consider this Internet significantly worse than the one there is now.

Because H.B. 20 also allows users to sue over platforms “de-boosting” or “denying equal access or visibility to” their content, platforms may choose to stop using algorithms to sort and personalize content. This would also downgrade most users’ experiences, as they would no longer get recommended content that is tailored to their interests.

Overall, the cost of litigation related to H.B. 20 will take platforms’ resources away from more productive avenues, like creating new services and experiences for users or investing in user safety. H.B. 20’s language is vague, the violations it outlines are difficult to prove, and it explicitly prevents platforms from citing a previous successful defense in subsequent court cases.

NetChoice will appeal the Circuit Court’s decision to the Supreme Court. In the meantime, Texas can enforce H.B. 20 and impose its view of what the Internet should look like on the rest of the country, to the detriment of social media platforms and their users.