August 16, 2022
Enlarge / US and Texas flags flying outside the Texas State Capitol building in Austin.

Getty Images | PA Thompson

More than two dozen groups have urged the US Supreme Court to block a Texas law that prohibits large social media companies from moderating content based on a user’s “viewpoint.”

The Texas law, HB20, “results in blatant violations of the First Amendment rights of platform providers,” said a Supreme Court brief filed yesterday. The law taking effect means that “chaos will ensue online with disastrous and irreparable consequences,” the brief said, continuing:

With platforms unable to effectively moderate scammers, messages preying on vulnerable populations, including the elderly, will proliferate online. The uptick of this content will predictably result in yet more people being tricked into sending money to scammers or disclosing financial information, leading to identity theft and financial ruin. Platforms will be powerless to regulate speech praising terrorists and those who engage in murderous campaigns, with horrendous potential ramifications if even a single person engages in copycat activity. And they may be precluded from protecting children from age-inappropriate content, including reprehensible messages encouraging our youth to engage in self-destructive activities.

The brief was signed by 20 tech-industry and advocacy groups, including the Chamber of Progress; Anti-Defamation League; Connected Commerce Council; Consumer Technology Association; Engine Advocacy; Family Online Safety Institute; HONR Network Inc.; Information Technology & Innovation Foundation; Interactive Advertising Bureau; IP Justice; LGBT Tech Institute; Multicultural Media, Telecom and Internet Council; National Association for the Advancement of Colored People; National Hispanic Media Coalition; Our Vote Texas; Software and Information Industry Association; Stop Child Predators; TechNet; Texas State Conference of the NAACP; and the Washington Center for Technology Policy Inclusion.

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Groups seek “healthy online environment”

These groups are “dedicated to ensuring that consumers can enjoy a healthy online environment where they can effectively and efficiently work, play, learn, shop, connect, and express themselves without harassment, disinformation, and incendiary content,” the brief said. For example, the “NAACP and Texas NAACP are keenly aware that HB20 would force platforms to host content that advocates for the reduction and/or elimination of civil rights, promotes discrimination, and threatens the well-being, education, and economic security of Black people and all persons of color.” The brief also notes that the Anti-Defamation League “has long played a leading role in raising awareness about hate on the Internet and working with major industry providers to address the challenge it poses.”

The Electronic Frontier Foundation joined with five other groups to protest the law in another Supreme Court brief filed Tuesday. What the Texas law defines as censorship are actually “well-established practices designed to serve users’ interests,” the EFF said. “Users are best served when they can choose among social media platforms with different editorial policies. While content moderation at scale is difficult to get right, it blocks content that some users don’t want to see, like personal abuse and harassment, hateful speech, promotion of suicide and self-harm, and glorification of Nazi ideology.”

The EFF’s brief was joined by the Center for Democracy and Technology, the National Coalition Against Censorship, R Street Institute, the Wikimedia Foundation, and the Woodhull Freedom Foundation.

Law was reinstated in one-sentence order

The Texas law was reinstated last week by the US Court of Appeals for the Fifth Circuit, which granted state Attorney General Ken Paxton’s motion to stay a preliminary injunction previously issued by Judge Robert Pitman at US District Court for the Western District of Texas. Pitman had ruled that the Texas law violates social networks’ First Amendment right to moderate user-submitted content.

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Big Tech groups NetChoice and the Computer & Communications & Industry Association (CCIA) appealed the Fifth Circuit ruling to the Supreme Court on Friday. Among other things, they pointed out that the Fifth Circuit judges merely issued a one-sentence order and did not explain their reasons for staying the preliminary injunction.

The EFF brief said, “Texas has not made a strong showing that it is likely to succeed on the merits. Every court that has considered the issue has found that social media platforms have a First Amendment right to edit and curate the content they publish on their sites. As practiced by social media platforms—including the large platforms that HB20 regulates—content moderation is the exercise of editorial judgment.”

A US District Court judge blocked a similar law in Florida in June 2021.