On December 1, hours before Texas’ social media law, HB 20, was slated to go into effect, a federal court in Texas blocked it for violating the First Amendment. Like a similar law in Florida, which was blocked and is now pending before the Eleventh Circuit Court of Appeals, the Texas law will go to the Fifth Circuit. These laws are retaliatory, obviously unconstitutional, and EFF will continue advocating that courts stop them.
In October, EFF filed an amicus brief against HB 20 in Netchoice v. Paxton, a challenge to the law brought by two associations of tech companies. HB 20 prohibits large social media platforms from removing or moderating content based on the viewpoint of the user. We argued, and the federal court agreed, that the government cannot regulate the editorial decisions made by online platforms about what content they host. As the judge wrote, platforms’ right under the First Amendment to moderate content “has repeatedly been recognized by courts.” Social media platforms are not “common carriers” that transmit speech without curation.
Moreover, Texas explicitly passed HB 20 to stop social media companies’ purported discrimination against conservative users. The court explained that this “announced purpose of balancing the discussion” is precisely the kind of government manipulation of public discourse that the First Amendment forbids. As EFF’s brief explained, the government can’t retaliate against disfavored speakers and promote favored ones. Moreover, HB 20 would destroy or prevent the emergence of even large conservative platforms, as they would have to accept user speech from across the political spectrum.
HB 20 also imposed transparency requirements and user complaint procedures on large platforms. While these kinds of government mandates might be appropriate when carefully crafted—and separated from editorial restrictions or government retaliation—they are not here. The court noted that companies like YouTube and Facebook remove millions of pieces of user content a month. It further noted Facebook’s declaration in the case that it would be “impossible” to establish a system by December 1 compliant with the bill’s requirements for that many removals. Platforms would simply stop removing content to avoid violating HB 20 – an impermissible chill of First Amendment rights.