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Divided Fifth Circuit Upholds Texas Social Media Censorship Law as Constitutional

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A split decision from the Fifth Circuit last Friday said that a Texas law, House Bill 20 (HB 20), which prohibits large social media platforms from censoring speech based on the viewpoint of its speaker, is constitutionally valid.

The 113-page decision comes after the Supreme Court, responding to a petition for emergency relief, stopped the law from going into effect at the social media platforms’ request.

At issue are two provisions of HB 20, the first of which bans viewpoint-based censorship of users’ posts and the second, which imposes certain disclosure and operational requirements on regulated entities with more than 50 million users like YouTube, Twitter, and Facebook.

Social media platforms, via trade groups like NetChoice LLC and Computer Communications Industry Association, challenged the law as infringing on their right to make content moderation decisions without government interference as protected by the First Amendment. 

Previously, the district court struck down the censorship provision as facially unconstitutional. It applied a preliminary injunction that was overturned in a one-sentence order by the Fifth Circuit in May. Shortly thereafter, the plaintiffs sought relief from the nation’s highest court, arguing that the Fifth Circuit had not even had the benefit of merits briefing before greenlighting the law.

In a 5-4 decision, the Supreme Court granted their request.

In last week’s opinion, the Fifth Circuit allowed the law to stand, in large part “reject[ing] the idea that corporations have a freewheeling First Amendment right to censor what people say.” The majority said the platforms’ arguments hugely overreach, calling them “a rather odd inversion of the First Amendment.”

The panel made multiple findings in support of its decision to uphold the main contested provision of HB 20, including that it is not facially unconstitutional because it does not chill speech, but if anything, chills censorship.  

The opinion also held that the First Amendment’s text and history offer no support for the social media platforms’ claimed right to censor. Further, and per Supreme Court precedent, the viewpoint censorship section was held not to regulate platforms’ speech, but instead “protects other people’s speech and regulates the Platforms’ conduct.”

Failing all else, the panel wrote that the anti-censorship section satisfies the intermediate scrutiny test that applies to content-neutral rules.

Circuit Judge Leslie H. Southwick dissented from most of the majority’s decision, concluding “yes” to the question of whether social media platforms engage in First Amendment-protected expression when they moderate their users’ content. 

The trade associations are represented by Lehotsky Keller LLP and Texas Attorney General Paxton by his office.

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