The controversial Texas social media law HB 20 is before the highest court in the United States, in a landmark case that will closely watched by many big name social networking firms.

HB 20 was signed into Texas law in September 2021, and it prohibits social media companies from “de-platforming” users based on their political views.

In essence, HB 20 prohibits social media firms (defined as having 50 million active monthly users and that rely primarily on user-generated content) from banning, demonetising or otherwise restricting content (that ordinarily would be banned) based on “the viewpoint of the user or another person”, whether or not that viewpoint is expressed on the platform itself.

Content moderation

The social media law also requires social media firms to disclose how they promote and moderate content and mandates transparency reports, similar to those already produced by Facebook, Google and others.

A separate provision requires social media companies to evaluate illegal content within 48 hours of being notified of it.

It gives Texas officials or local residents the ability to sue social media firm over their moderation decisions.

Last week the Fifth Circuit Court of Appeals granted a request from Texas Attorney General Ken Paxton for a stay in NetChoice and CCIA v. Paxton.

That case references a similar social media law that was passed in Florida in May 2021 – designed by that state’s republican governor, to prevent social media firms from ‘deplatforming’ political figures.

Florida’s law however was suspended by a federal judge in June last year, who ruled that it violated the US First Amendment right to free speech.

NetChoice and the CCIA were those successful in blocking that Florida law last year. Both then also managed to block Texas HB 20 as well.

That was until last week when the US Appeal Court granted Texas Attorney General Ken Paxton’s request for a stay in NetChoice and CCIA v. Paxton.

Supreme Court

Advocacy groups representing the tech industry however have taken the case to the US Supreme Court, where Justice Samuel Alito is considering whether HB 22 infringes the First Amendment, and whether to grant an emergency stay of the lower court decision that allowed the law to take effect last week, CNN reported.

Opponents argue HB 20 infringes on the constitutional rights of tech platforms to make editorial decisions and to be free from government-compelled speech.

The case is viewed as a landmark challenge for the social networking industry, as it could determine whether tech platforms have to scale back their content moderation and allow a broad range of material that their terms currently prohibit.

According to CNN in court papers, the advocacy groups call the law “an unprecedented assault on the editorial discretion of private websites.”

They warn it would “compel platforms to disseminate all sorts of objectionable viewpoints – such as Russia’s propaganda claiming that its invasion of Ukraine is justified; ISIS propaganda claiming that extremism is warranted; neo-Nazi or KKK screeds denying or supporting the Holocaust; and encouraging children to engage in risky or unhealthy behaviour like eating disorders.”

But Texas is not backing down, and Texas Attorney General Ken Paxton, according to CNN, argued that HB 20 does not infringe on tech platforms’ speech rights as the state law instead seeks to regulate the companies’ conduct with regard to their users.

Even if the law did raise First Amendment concerns, he reportedly argued, those concerns are adequately addressed by the fact that HB 20 seeks to define social media companies as “common carriers” – much like phone companies and railroads.

For their part the social networking industry has previously cited Section 230 that exempts social networking firms from liability for user content, to defend themselves against legal action over user generated content.

But CNN reported that HB 20 clashes with Section 230, by saying tech platforms can be sued in Texas for moderating their online communities.

This raises questions about the future of the Section 230.

Judge Alito could make a unilateral decision on the stay, or refer the decision to the full Supreme Court.

Tom Jowitt

Tom Jowitt is a leading British tech freelancer and long standing contributor to Silicon UK. He is also a bit of a Lord of the Rings nut...

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