A federal appeals court on Friday upheld a Texas law that seeks to prohibit social-media platforms from blocking or removing posts based on the speaker’s viewpoint, a decision that could set the stage for the Supreme Court to resolve a case with broad ramifications for online discourse.
Texas Republicans enacted the law, known as HB 20, last year, a response to what they said were concerns about the suppression of conservative political views on
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The law, which has been on hold for now, allows Texas residents, or anyone doing business in the state, to sue platforms and seek court orders against content removal. It also gives enforcement powers to the state attorney general. HB 20 allows plaintiffs to seek injunctive relief and attorneys’ fees, but not damages.
A pair of trade associations representing tech companies filed suit to challenge the law and warned that it could lead to a wave of harmful and offensive posts.
A three-judge panel of the Fifth U.S. Circuit Court of Appeals in New Orleans issued a split ruling Friday in the state’s favor.
Judge Andrew Oldham, writing for the majority, rejected the tech associations’ arguments that the law violated the First Amendment rights of social-media companies to exercise editorial discretion over the content published on their platforms.
“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” Judge Oldham, a Trump appointee wrote. He was joined in the majority by Judge Edith Jones, a Reagan appointee.
In dissent, Judge Leslie Southwick said tech companies are engaged in constitutionally protected activity when they make decisions about which speech is permitted, featured, promoted and monetized on their private platforms.
“Balance and fairness certainly would be preferable, but the First Amendment does not require it,” Judge Southwick, a George W. Bush appointee, wrote.
The Supreme Court, on a 5-4 vote, in May ordered that the Texas law remain on hold while the litigation continued. That order wasn’t a ruling on the legality of HB 20. The case is likely to come back to the high court after Friday’s decision.
“We remain convinced that when the U.S. Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms and apps,” said Carl Szabo, vice president and general counsel of NetChoice, one of the trade groups that sued.
Texas Attorney General
Ken Paxton,
a Republican, didn’t immediately respond to a request for comment.
Write to Brent Kendall at [email protected]
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Appeared in the September 17, 2022, print edition as ‘Texas Social-Media Law Is Upheld.’
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