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The First Amendment and social media

The Texas Legislature enacted HB 20, a gobsmacking law, in September 2021, declaring social media platforms and interactive computer services to be “common carriers,” charged, as the bill reads, with a public interest of being “central forums for public debate.”

HB 20 defines social media as an internet website having more than 50 million users that is open to the public and allows users to create accounts to communicate with others through the posting of information, comments, and messages or images. Media giants like YouTube and Twitter are affected. A few days ago, the U.S. Court of Appeals for the 5th Circuit held the law to be constitutional and enforceable.

HB 20’s purpose is to impose limits on the ability of owners of these social media sites to censor and delete posts if these posts originate in Texas. To do this, HB 20 prevents social media platforms from moderating content on a viewpoint basis; as well, these platforms must also evaluate potentially illegal content within 48 hours of notice of posting. Can anyone say “viewpoint” discrimination?

Affected social media platforms immediately challenged the law when it was enacted in September 2021. In December 2021, a U.S. District Court judge blocked enforcement of this law. This was appealed to the 5th Circuit, where in May 2022, a three-judge panel ruled that the law is constitutional and enforceable.

The 5th Circuit’s ruling was promptly appealed to the Supreme Court, which suspended enforcement pending its ordered review by the full circuit.  A few days ago the 5th Circuit completed its review and again held the law enforceable and not unconstitutional.

HB 20 creates a two-edged dagger with a needle-sharp point. This is illustrated by one writer who asked whether the law creates an untenable question for social media, when for example a user posts about abortion, now illegal in Texas. Is the post viewpoint, which must remain, or is the post illegal content the site should, out of an abundance of caution, remove, because abortions are illegal in Texas?

The answer depends on the viewpoint expressed by the post and to some extent the laws enacted by the Texas Legislature.

Although HB 20 does not mandate that social media is required to remove illegal posts, and Section 320 of the Communications Decency Act provides safe haven for internet service providers, many who have examined HB 20 believe it is likely that major platforms with an eye on this Texas law may feel the need to act to remove posts that they consider to contain illegal content, even if viewpoint-related; the approach of social media may be conservative in terms of deciding what content is potentially illegal, and will result in deletion of a poster’s viewpoint.

HB 20 is likely to create an imbalance, favoring the stated position of the Texas Legislature on some controversial issues against the public’s ability to criticize that law. This will occur, because, for example, platforms are required to maintain without censorship users’ posts disparaging abortion rights, but may not be permitted to maintain users’ posts defending abortion rights because abortions in Texas are illegal.

In other words, what the Texas Legislature, with the governor’s signature, has done is to encourage pro-government program viewpoint speech, while in some instances, eliminating speech opposed to those activities that Texas has criminalized, despite the polarized public debate over these topics.

Perhaps worse, is the law’s prohibition on censoring posts hyping political conspiracy theories, such as voter fraud, QAnon theories, thoughts on race and immigration, and even pornography.

The constitutional argument is whether this law is unenforceable because it amounts to a government compelling private businesses to publish speech they otherwise would not. A critic of HB 20 summed it up, like this:  “The First Amendment prohibits Texas from forcing online platforms to host and promote foreign propaganda, pornography, pro-Nazi speech and spawns.”  Texas, however, would require them to do so.

This is viewpoint speech, and no matter how vile it may be, it may not be removed by the platforms unless the viewpoint is illegal.

Justice Clarence Thomas had earlier called on the Supreme Court to moderate Section 320 of the Communications Decency Act. He was not a fan of Section 320’s protection, likening digital platforms to traditional telephone companies, stating that if the latter can be regulated, so can the former.

The Supreme Court has not yet acted to remove its earlier restriction blocking enforcement of the law. The 11th Circuit had held a Florida law similar to HB 20 unconstitutional. The stage is now set for the Supreme Court to take up HB 20 and the comparable Florida law and rule on the constitutionality of one or both of these on the grounds there is a split in the circuits.

Justice Samuel Alito, who has commented publicly on the power of social media companies to shape public discourse, will likely join with Thomas and vote that this law is constitutional and should be enforced.  Where the other four conservative justices will land is an open question should the court vote to take this case.

James B. Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP and has taught trademark and unfair competition law since 2001 at the Carey School of Law and the University of Baltimore School of Law.

 

 


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