Facebook CEO Mark Zuckerberg announces the plan to make Facebook more private at Facebook's Developer Conference on April 30, 2019. Wikimedia Commons

Court Upholds Texas Law Banning Social Media Censorship

The Fifth Circuit Court of Appeals has upheld a Texas law that banned social media censorship from social media companies.

The decision, which was released Friday, came fro ma panel of three judges, and vacated an injunction from the Western District of Texas, The Daily Wire reports.

Opponents to the law claimed it would restrict free speech rights but the panel found that the law would actually stop censorship and protect the rights of individuals on a platform to free speech.

Fifth Circuit Judge Andrew Oldman wrote,

“A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances. In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to ‘the freedom of speech.’ But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”

He continued: “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”

Social Media companies complained that the law was too broad and would chill speech, but the court pointed out that the only thing the law chills is censorship.

The Daily Wire further reports:

Applying Supreme Court precedent, the court further found that the law does not regulate the speech of the platforms at all, neither compelling them to speak nor restricting them from speaking; instead, it protects the speech of users, and regulates platforms’ conduct as it relates to that speech. “[C]ensorship is at best a form of expressive conduct, for which the overbreadth doctrine provides only ‘attenuate[d]’ protection,” Oldham wrote.

The court cited Section 230, saying that the platforms are not “speaking” when they host other people’s speech. The court also rejected the platforms’ claims of “editorial discretion” on two bases: first, the court noted that unlike newspapers, social media platforms do not claim responsibility for the content they host, and are in fact protected from such liability by Section 230. Second, newspapers engage in content moderation before it it published; platforms, on the other hand, engage in censorship after users publish their content. Furthermore, the Fifth Circuit cited the common carrier doctrine, which empowers Texas to prevent the platforms from discriminating against users who live in Texas.

“We reject the Platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” the Fifth Circuit concluded. “The Platforms are not newspapers. Their censorship is not speech. They’re not entitled to pre-enforcement facial relief. And HB 20 is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way.”

The case was sent back to the Western District of Texas for continued proceedings on the matter.

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