On Dec. 1, hours before Texas social media law took effect, HB 20, a federal court in Texas blocked him for violation of the First Amendment. Like a similar law in Florida, which was stalled and is now pending in the Eleventh Circuit Court of Appeals, the Texas law will go to the Fifth Circuit. These laws are retaliatory, patently unconstitutional, and the EFF will continue to advocate for the courts to stop them.
In October, the EFF filed a amicus brief against HB 20 in Netchoice vs. Paxton, a challenge to the law brought by two associations of technology companies. HB 20 prohibits major social media platforms from removing or moderating content based on the user’s perspective. We argued, and the Federal Court agreed, that the government cannot regulate the editorial decisions made by online platforms about the content they host. As the judge wrote, the platforms’ First Amendment right to moderate content “has been repeatedly recognized by the courts.” Social media platforms are not “common carriers” that transmit the word without curation.
Additionally, Texas explicitly enacted HB 20 to end alleged discrimination by social media companies against conservative users. The court explained that this “advertised goal of balancing the discussion” is precisely the type of governmental manipulation of public speech prohibited by the First Amendment. As the EFF brief explained, the government cannot retaliate against disadvantaged speakers and promote favored ones. Moreover, HB 20 would destroy or prevent the emergence of even large conservative platforms, as they should accept the discourse of users from all political backgrounds.
HB 20 also imposed transparency requirements and user complaint procedures on major platforms. While these kinds of government mandates may be appropriate when carefully crafted – and separated from editorial restrictions or government retaliation – they are not there. The court noted that companies like YouTube and Facebook remove millions of user content per month. He further noted Facebook’s statement in the case that it would be “impossible” to establish a system by December 1 that meets the bill’s requirements for so many deletions. Platforms would simply stop removing content to avoid violating HB 20 – an impermissible chilling of First Amendment rights.
