Court of Appeals renews Texas law targeting social media companies

A Texas law banning large social media companies from removing political speech became the first of its kind to go into effect Wednesday, asking tricky questions to major web platforms about how to stick to the rules.

The law, which applies to social media platforms in the United States with 50 million or more monthly active users, was passed last year by lawmakers contesting sites like Facebook and Twitter for removing posts from conservative editors and personalities. . The law allows users or the state attorney general to sue online platforms that remove posts because they express a certain point of view.

In a brief order Wednesday, the United States Court of Appeals for the Fifth Circuit, based in New Orleans, overturned a previous ruling that prevented the state from enforcing the law. While tech industry groups are defying the law that they should appeal the ruling, it creates uncertainty for major web platforms that may now face lawsuits when they decide to remove content for violating their rules.

The surprise ruling comes amid a broader debate in Washington, states and foreign capital on how to balance freedom of expression with online security. Some members of Congress have proposed holding online platforms accountable when promoting discriminatory advertisements or public health disinformation. The European Union last month reached an agreement on rules to combat disinformation and increase transparency about how social media companies operate.

But conservatives have argued that platforms remove too much, rather than too little, content. Many of them praised Elon Musk’s recent Twitter purchase because he promised lighter restrictions on parole. When the site banned President Donald J. Trump following the attack on the US Capitol on January 6, 2021, Republicans in state houses proposed legislation to regulate how companies enforce their policies.

“My office just secured another BIG VICTORY against BIG TECH,” Ken Paxton, Texas Attorney General and Republican, said in a tweet after the law was reinstated. A spokesperson for Mr. Paxton did not provide details on how the Attorney General intended to enforce the law.

Florida last year passed a bill that fined companies if they canceled the accounts of some political candidates, but a federal judge prevented it from going into effect after tech groups sued. The Texas bill takes a slightly different approach, stating that a platform “cannot censor a user, a user’s expression, or a user’s ability to receive another person’s expression” based on the ” point of view of the user or another person “.

The law does not prevent platforms from removing content when notified by organizations that track the sexual exploitation of children online or when it “consists of specific threats of violence” against someone based on the person’s race or other protected qualities. The law also includes provisions requiring online platforms to be transparent about their moderation policies.

When the Texas governor signed the state bill in September, the tech industry sued to block it. He argued that the ban on platforms violated their right to free speech to remove anything they deemed objectionable.

The United States District Court for the Western District of Texas suspended the law in December, saying it violated the Constitution. When the appeals court overturned the district court’s decision Wednesday, it did not affect the merits of the law.

Carl Szabo, vice president of NetChoice, a group funded by companies including Google, Meta and Twitter who are suing to block the law, said, “We are evaluating our options and plan to appeal the order immediately.”

Spokesmen for Facebook and Twitter declined to comment on their plans.

Jameel Jaffer, executive director of Columbia University’s Knight First Amendment Institute, which filed pleadings in Texas and Florida opposing the laws, said it was “truly disturbing” that the appeals court has apparently accepted Texas’s argument that the law was legally admissible.

“Accepting this theory means giving the government the power to distort or manipulate online discourse,” he said.

Critics of the law say they believe it will leave platforms at a bind: abandon disinformation and racist content or face lawsuits across Texas. Daphne Keller, a former Google attorney who is now director of the platform regulation program at Stanford University’s Cyber ​​Policy Center, said that a firm’s compliance with the law “would drastically change the service it offers. “.

Ms. Keller said companies might consider restricting access to their websites in Texas. But it is unclear whether such a move would in itself violate the law.

“If you’re the business, I’m sure you’re thinking, ‘Could we do this?’” She said. “Then there’s the question of what this would look like in the public eye.”