Texas bans enforcement of law targeting certain social media platforms

the August 13, 2021 Blog post on trends in law discussed how the United States District Court for the Northern District of Florida banned Florida from enforcing a law that targeted some, but not all, social media platforms based on the content of the speech hosted on their websites. On December 1, 2021, a federal district court in the West District of Texas, following arguments heard at NetChoice LLC vs. Paxton, relied on the First Amendment and also directed Texas to enforce a law that would have prevented many social media companies from moderating the content of their websites.

Texas Status – HB20 – prohibits some social media companies from “censoring” users of a platform based on the user’s perspective. However, the law only applied to certain social media companies, that is to say, those with more than 50 million users and which allow users to create accounts so that they can communicate with others by posting information, images, comments or messages. The law also imposed disclosure and operational requirements on social media platforms and allowed users in Texas or people doing business in Texas to seek an injunction and attorney fees if they believed their speech had been censored from. inappropriately. The law also allowed the Texas Attorney General (defendant Ken Paxton) to seek an injunction and attorney fees for violating the law. Two professional social media associations have filed a lawsuit to prevent Texas from enforcing HB20 based on, among other things, the First Amendment.

After dismissing Texas ‘motion to dismiss the action on the basis of the plaintiffs’ lack of standing, the district court focused its analysis on whether HB20 had in fact violated the First Amendment. The Honorable Robert Pitman, USDJ found that private social media companies exercised editorial discretion over their websites, which was protected by the First Amendment and violated the rights of complainants’ members. The court made this ruling because: (1) HB20 forced social media platforms to post objectionable content and restricted their editorial discretion; (2) the law imposed unduly onerous disclosure and operating requirements on platforms; (3) the law discriminated against both content and speaker (because certain types of speech were exempt from the law and only applied to some social media companies rather than all); (4) HB20 contained unconstitutionally vague terms; and (5) the law failed through strict and interim control analyzes. Accordingly, the district court granted the plaintiffs’ request for a preliminary injunction.

Like the Florida case, which is already on appeal to the Eleventh Circuit, the Texas case is also on appeal. On December 6, 2021, Texas filed an interlocutory notice with the United States District Court for the Fifth Circuit, which accepted the electronic record on appeal on December 15. As two appellate courts are now considering similar laws that were struck down on the basis of the First Amendment, it seems inevitable that these issues will eventually reach the Supreme Court. Stay tuned.


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