Texas social media law reinstated by Fifth Circuit
On Wednesday, May 11, the Fifth Circuit Court of Appeals reinstated a controversial Texas social media law that a district court had blocked in late November 2021.
HB 20, which was signed into law by Texas Governor Greg Abbott in September 2021, prohibits large social media companies from censoring user generated content (UGC) based on “the viewpoint of the user or another person.”1 The law, which applies only to social media companies with at least 50 million monthly active users in the United States, makes it illegal to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”2 According to some critics, HB 20 restricts the ability of large social media companies to exercise editorial discretion in their content moderation practices.
The law also requires social media companies to (1) publish a broad range of detailed metrics and disclosures regarding the way social media platforms curate and display UGC, moderate UGC, and handle user complaints and appeals relating to removal of UGC3; (2) create and publish acceptable use policies to guide content moderation internally4; and (3) create a complaints and appeals process that permits users to appeal a decision by the social media platform to remove the user’s UGC.5
Additionally, the law contains purported “must-carry” obligations by restricting social media platforms from “censor[ing]…a user’s ability to receive the expression of another person based on…a user’s geographic location in [Texas] or any part of [Texas].”6 HB 20 provides for both a private right of action and enforcement by the Texas Attorney General.
Background to the litigation
In late November 2021, two trade associations with members affected by HB 20 (NetChoice LLC and the Computer & Communications Industry Association) sued to enjoin the law. The plaintiffs successfully argued that HB 20’s restrictions on their members’ editorial discretion were a violation of their First Amendment rights and impermissibly vague.
On December 1, 2021 in NetChoice v. Paxton, the court issued a preliminary injunction prohibiting Texas from enforcing the law. Texas appealed the lower court’s ruling to a three-judge panel of the Fifth Circuit, which, in a 2-1 vote on May 11, lifted the injunction and allowed the law to go into effect.
Next: emergency appeal to Supreme Court
Rather than appealing to the full Fifth Circuit, on Friday, May 13, the plaintiffs appealed directly to the Supreme Court for an emergency stay pending further proceedings. The plaintiffs’ request for an emergency stay will be reviewed by Justice Samuel Alito.
Failing issuance of the requested emergency stay, social media companies subject to the law will be faced with figuring out how to comply with the law’s content moderation restrictions and requirements while litigation proceeds at the Fifth Circuit level.
A similar law in Florida was blocked via a preliminary injunction last year. Florida appealed that injunction, and a three-judge panel of the Eleventh Circuit Court of Appeals is expected to issue a ruling in the coming weeks.
Learn more about the implications of this litigation by contacting any of the authors.