Federal Appeals Court Upholds Controversial Texas Social Media Law Restricting Content Moderation
by Brian Fung
September 16, 2022
Introduction:
(CNN Business) — A federal appeals court on Friday upheld a controversial Texas law that restricts the ability of Facebook, Twitter and YouTube to moderate content on their platforms, setting up a potential Supreme Court showdown while also renewing uncertainties about how tech platforms may operate in the state in the future.
The Texas law, known as HB 20, does not violate the First Amendment rights of tech platforms by requiring them to host speech they find objectionable, according to the decision by a three-judge panel at the Fifth Circuit Court of Appeals.
“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the judges wrote.
The decision is a defeat for the tech industry, which had sued to block the law, alleging it was unconstitutional. Earlier this year, another appellate court blocked a similar law in Florida from going into effect, citing the same arguments.
Texas officials passed HB 20 last year amid allegations that tech platforms unfairly censor conservative speech. Social media companies have widely denied the claims, but the Texas law imposes sweeping obligations on platforms, prohibiting them from moving to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
Read more here:
https://www.cnn.com/2022/09/16/tech/te ... dex.html
Extract:
(Tech Dirt) (Federal Appeals Court) Judge Oldham insists that concerns about forcing websites to post speech from Nazis, terrorist propaganda, and Holocaust denial are purely hypothetical. Really.
The Platforms do not directly engage with any of these concerns. Instead, their primary contention—beginning on page 1 of their brief and repeated throughout and at oral argument—is that we should declare HB 20 facially invalid because it prohibits the Platforms from censoring “pro-Nazi speech, terrorist propaganda, [and] Holocaust denial[s].” Red Br. at 1.
Far from justifying pre-enforcement facial invalidation, the Platforms’ obsession with terrorists and Nazis proves the opposite. The Supreme Court has instructed that “(i)n determining whether a law is facially invalid,” we should avoid “speculat[ing] about ‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–50. Overbreadth doctrine has a “tendency . . . to summon forth an endless stream of fanciful hypotheticals,” and this case is no exception. United States v. Williams, 553 U.S. 285, 301 (2008). But it’s improper to exercise the Article III judicial power based on “hypothetical cases thus imagined.” Raines, 362 U.S. at 22; cf. SinenengSmith, 140 S. Ct. at 1585–86 (Thomas, J., concurring) (explaining the tension between overbreadth adjudication and the constitutional limits on judicial power).[/i]
These are not hypotheticals. This is literally what these websites have to deal with on a daily basis. And which, under Texas’ law, they no longer could do.
Oldham continually focuses (incorrectly and incoherently) on the idea that editorial discretion is censorship. There’s a reason that we’ve spent the last few years explaining how the two are wholly different — and part of it was to avoid people like Oldham getting confused. Apparently it didn’t work.
For the lengthy and technical article in
TechDirt discussing this decision:
https://www.techdirt.com/2022/09/16/5t ... moderate/
Don't mourn, organize.
-Joe Hill