NetChoice and the Computer & Communications Industry Association (CCIA) have sued to stop Texas from enforcing HB 20, a new law barring large social media companies from banning users or removing content based on the “viewpoint” of the user. The tech industry groups’ suit comes two weeks after Texas Governor Greg Abbott signed the bill, and it follows a lawsuit that successfully blocked a similar rule in Florida.
HB 20 is one of multiple state-level efforts to make companies like Facebook and Twitter leery of moderating the accounts of conservative users. Texas lawmakers have positioned the bill as an anti-censorship provision, but NetChoice and the CCIA argue that it — like the Florida law before it — violates companies’ First Amendment rights to choose what speech they host.
“At bottom, HB 20 imposes impermissible content- and viewpoint-based classifications to compel a select few platforms to publish speech and speakers that violate the platforms’ policies — and to present that speech the same way the platforms present other speech that does not violate their policies,” the complaint says. “At a minimum, HB 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 objects to transparency provisions that would, in its words, require companies to “document in excruciating detail how they exercise their editorial discretion over potentially billions of pieces of content.” It argues that as a whole, the law infringes on web services’ right to free expression. It also calls the bill unconstitutionally vague, saying that terms like “viewpoint” could “encompass essentially all expression,” the ban on “censoring” content includes elements that could “encompass even the basic functions that Plaintiffs’ members use to present content,” and its definition of “social media platform” could cover services like the shopping site eBay or the gaming and “metaverse” platform Roblox.
Like other states’ laws, HB 20 may also be preempted by Section 230 of the Communications Decency Act, a federal rule that would override conflicting state-level policies. Section 230 says that web services can’t be treated as the publisher or speaker of third-party content, and they generally can’t be prosecuted for removing “objectionable” content from their services.
In a call with reporters, NetChoice president and CEO Steve DelBianco clarified that the plaintiffs aren’t immediately challenging a portion of the rule barring “censorship” on email services because they’re targeting what they see as the most immediately vulnerable sections of the law. But CCIA president Matt Schruers says they will go after that provision if necessary. “The Texas legislature is trying to legislate more spam into your inbox, and I don’t see the value of that,” says Schruers. “Nobody wants any more spam.”
A federal judge was highly unsympathetic to Florida’s social media law earlier this year, awarding NetChoice and the CCIA a preliminary injunction against it and calling it likely unconstitutional. The Texas law won’t raise all the same issues as the Florida one — for instance, it doesn’t include Florida’s infamous exception for companies with theme parks. But the two rules have a lot in common, and Texas (alongside nine other states) submitted a brief supporting Florida in its case, saying an unfavorable ruling could potentially “imperil” similar laws like HB 20.
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