Two internet trade organizations have challenged a Texas law regulating social media companies’ ability to remove users from their platforms. The law, House Bill 20, was signed by Governor Greg Abbott earlier this month.
NetChoice and the Computer and Communications Industry Association (CCIA) filed a lawsuit in the Western District of Texas against Texas Attorney General Ken Paxton on Wednesday to prohibit the enforcement of HB 20. The complaint asserts that HB 20 violates their First Amendment right to engage in free speech and exercise editorial control over speech published on their websites.
HB 20 treats social media platforms as common carriers that operate public forums and requires them to publish transparency reports on their activity. The complaint argues that the disclosure requirements in HB 20 are “designed to prescriptively manage — and therefore interfere with and chill — platforms’ exercise of editorial discretion.”
The complaint states that HB 20 prevents these platforms from removing, labeling, or commenting on content that violates their policies, thereby prohibiting them from protecting themselves, their users, advertisers, and the general public from “harmful and objectionable matter.”
The complaint goes on to state, “At a minimum, H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.”
The plaintiffs further assert that HB 20 is at least partially preempted by Section 230 of the Communications Decency Act. Section 230 shields platforms from liability for content posted on their sites by users. According to the plaintiffs, the federal statute supersedes the portions of the Texas law that impose liability for moderating users’ content and therefore the Texas law cannot be enforced.
After signing HB 20 into law, Governor Abbott stated, “There is a dangerous movement by social media companies to silence conservative viewpoints and ideas.” Section 230 is sometimes criticized for allowing social media companies to biasedly censor content from users on the ideological right. However, Section 230 has also been criticized for allowing social media platforms to take little to no action and skirt accountability for harmful content.
Finally, plaintiffs argue the law also violates the Commerce Clause, the Due Process Clause, the Full Faith and Credit Clause, and the Equal Protection Clause of the Constitution.
A federal judge recently granted a preliminary injunction in another case to prohibit the enforcement of a similar Florida law.
Texas sued over social media censorship law, Courthouse News Service (September 22, 2021)
NetChoice and CCIA v. Paxton Complaint (September 22, 2021)
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