Texas Social Media Law Takes Effect After Fifth Circuit Revival

On Wednesday, the Fifth Circuit Court of Appeals issued a one-sentence order undoing, for now, the preliminary injunction imposed by a Western District of Texas judge that prevented the Texas anti-censorship law from taking effect. The reversal comes after Texas Attorney General Ken Paxton sought interlocutory review of the trial court’s December decision finding that the law trammeled on social media platform’s First Amendment rights.

That opinion recounted that the legislation, HB 20, prohibits large social media platforms from censoring a user based on viewpoint. It applies to sites like Facebook, Instagram, Pinterest, TikTok, Twitter, WhatsApp, and YouTube, the ruling said, pointing to a four-part definition, one of which is that a platform must have more than 50 million active monthly users in the U.S. Additionally, it equips aggrieved users and the Texas attorney general with the right to sue if they believe they have been censored based on their views.

The plaintiffs, NetChoice LLC and Computer & Communications Industry Association, are “two trade associations with members that operate social media platforms that would be affected by HB 20.” They sued to overturn the law, partly pointing to the stated motivations of Texas politicians concerning “‘West Coast oligarchs’ and the ‘dangerous movement by social media companies to silence conservative viewpoints and ideas.’”

Notably, the opinion made mention of the same plaintiffs’ successful and recent campaign to halt a similar Florida censorship law. A federal court preliminarily enjoined the law last July, though the decision is currently on appeal to the Eleventh Circuit.

In the Texas case, Judge Robert Pitman first determined that the plaintiffs had associational standing to sue, then made multiple findings about the law’s constitutionality.  

The opinion clarified that social media platforms are allowed to exercise editorial discretion, whether or not a state agrees with how it is exercised. Judge Pitman then ruled that HB 20 curtails the trade association members’ First Amendment rights because it “compels social media platforms to disseminate objectionable content and impermissibly restricts their editorial discretion.” To this end, the court noted that HB also chills First Amendment speech by presenting the threat of lawsuits.

Judge Pitman further opined that HB 20 suffers from constitutional defects because it discriminates based on content and speaker. While it carves out certain forms of speech as acceptable for censorship, it leaves out others like sexual orientation, military service, or union membership, without legitimate reason, the court said.

In addition, the court slashed other HB 20 provisions as prohibitively vague. Despite the existence of an severability clause, Judge Pitman concluded that, “[l]ike the Florida statute, ‘[t]here is nothing that could be severed and survive.’”

With this week’s decision, the Fifth Circuit has undone the preliminary injunction, allowing the law to take effect.

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