NEW ORLEANS (CN) — An attorney for two internet trade groups that represent the largest tech companies in the U.S., including Meta, YouTube and Twitter, argued before the Fifth Circuit on Monday that a Texas law aimed at stopping online censorship of political speech is an “assault on constitutional rights.”
The law, known as House Bill 20, regulates social media companies’ ability to remove users from their sites. It says the sites are common carriers and are therefore required to be open to all for free use as a public forum.
Under the law, platforms with more than 50 million users – including Facebook parent company Meta, Twitter and YouTube – are required to disclose all information related to how they target users, promote content, moderate users and use algorithms. Users who say they have wrongfully been censored are able to sue companies in Texas for injunctive relief and attorney fees.
The law was passed in the wake of former President Donald Trump being permanently banned from Twitter and suspended from Facebook through at least 2023 following the Jan. 6, 2021, insurrection at the U.S. Capitol by Trump supporters. HB 20 was signed by Texas Governor Greg Abbott, a Republican, last September.
NetChoice and the Computer and Communications Industry Association, or CCIA, quickly filed a lawsuit against Texas Attorney General Ken Paxton challenging HB 20 on behalf of their members. They claim the law violates companies’ First Amendment rights to editorial discretion over the content published on their sites.
“At 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 complaint states.
HB 20 was blocked in December by U.S. District Judge Robert Pittman, a Barack Obama appointee who wrote in a strongly worded 30-page order that he “starts from the premise that social media platforms are not common carriers.” Texas appealed to the New Orleans-based Fifth Circuit.
During Monday's hearing, U.S. Circuit Judge Andrew Oldham, a Trump appointee, asked NetChoice and CCIA attorney Scott Keller if, in the absence of HB 20, social media platforms can refuse to publish anything they don't want to be seen.
“Yes,” Keller replied, adding that what a site declines to publish should be at each site’s discretion.
“So Twitter tomorrow could decide that it’s going to ban all pro-LGBT speech on the internet, and you would be OK with that?” Oldham pressed.
“Yes,” Keller said, “but it hasn’t –”
“Twitter could do that,” Oldham interjected. “It’s under new ownership.”
U.S. Circuit Judge Edith Jones, an appointee of Ronald Reagan, asked Keller about the idea that social media is the "new public square."
“We’re talking about private entities protecting speech,” the attorney replied. “The government doesn’t get to decide what they do.”
“Tomorrow, Verizon could decide they are going to listen to phone calls, and when they hear a call they don’t like they can disconnect it because they don’t like the content?” Oldham asked.
“No,” Keller said, “because telecommunication is different.”
Texas Assistant Solicitor General Ryan Baasch argued on behalf of the state and agreed that regulation of telephones is different than websites or newspapers, which must stand behind the content they put out.
“With newspapers, television, editorial,” Baasch said, “it makes sense, and you would say of course you need an editor. But between two people who are just having a conversation, an editor is not required.”
But he said that newspaper and TV editorials must be submitted for approval, whereas content on the internet is not marked with a stamp of approval.
“I think that is a very critical distinction,” Baasch said.
He argued the internet companies represented by NetChoice and CCIA are saying they are not responsible for creating online content while also saying they have a constitutional right to control it.
Baasch asked the appeals panel to reverse the lower court's injunction and remand the case for further consideration.
U.S. Circuit Leslie H. Southwick, an appointee of George W. Bush, rounded out the panel. The judges did not say how or when they will rule on the matter.
Abbott and his fellow Republicans who crafted HB 20 believe it will protect conservatives from removal from social media platforms for expressing their political opinions.
“There is a dangerous movement by social media companies to silence conservative viewpoints and ideas,” the governor said in a statement after signing the bill into law last year.
But NetChoice and CCIA say the tech companies they represent “have a right and a commitment to their communities to take action against problematic content on their platforms.”
“That stands whether the content is racism and abuse or anti-American extremism or foreign propaganda,” CCIA President Matt Schruers said in a statement. “Encouraging lawsuits against companies exercising their First Amendment rights would violate the Constitution and put Texans at greater risk online.”
“I think the court’s interest in the case reflects that this is one of the critical First Amendment issues of our time,” Schruers said in a phone call following Monday’s hearing.
Paxton’s office did not immediately respond to an email request for comment.
A similar law in Florida was challenged earlier this year by NetChoice and the CCIA. Florida’s Senate Bill 7072 would give the attorney general or citizens of the state the ability to file lawsuits against social media sites for removing content or users. A judge blocked the law from being enforced.
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