Sunday, June 26, 2022

Court Enacts Texas Restrictions on Social Platform Content Moderation

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Controversial Texas social media law HB 20 takes effect today following a US appeals court ruling. Trade groups NetChoice and the Computer and Communications Industry Association (CCIA) succeeded in blocking HB 20 from court last year, but that victory has been overturned by the Fifth Circuit Court of Appeals, which was announced today. Texas Attorney General Ken Paxton’s Request to Stay in NetChoice and CCIA v. PaxtonNetChoice and the CCIA managed to block a similar law in Florida last year.

HB 20 allows the office of Paxton or Texas residents to sue social networks that moderate based on “the point of view of the user or another person,” among other violations — language that makes basic moderation decisions potentially legally risky.

The verdict follows a confusing hearing where a fifth circuit judge argued that web services like Twitter “are not websites” and compared them to telephone companies like Verizon, which are governed by specific common carrier rules established by the FCC. NetChoice and the CCIA can choose to appeal, but without prompt intervention from a higher level such as the Supreme Court, the law is now in effect.

“In an unusual and unfortunate move, a divided 2-1 Fifth Circuit panel lifted the order without ruling on its merits and without issuing an opinion explaining the order. Because HB 20 is constitutionally rotten through and through, we are weighing our options and intend to immediately appeal the injunction,” said Carl Szabo, NetChoice vice president and general counsel.

HB 20 includes web services that have more than 50 million active monthly users and rely mainly on user-generated content. That includes giant networks like Facebook, but also many smaller sites and apps. It also applies specifically to email provider rules. It is an unprecedented decision to let state governments control how companies moderate websites. It also conflicts with another circuit’s decision to block the similar Florida bill, potentially setting up a Supreme Court battle over moderation — which some judges are keen to include.

But it’s not yet clear what the decision means practically for Texas residents or others on the Internet. The rule applies to decisions made after the law goes into effect, so aggrieved users cannot sue for past conflicts with the services. Google did not immediately respond to questions about whether it would change its policy. Twitter and Facebook owner Meta declined to comment.

Based on the hearing, the decision apparently hinges on the judges’ sympathy for claims that major social networks constitute a “public square” or utility akin to a telephone network — where operators are required to treat content neutrally. Internet Service Providers such as Comcast goods defined as common carriers under the Obama administration’s net neutrality rules, but those rules were quickly repealed under former President Donald Trump, and web platforms like Facebook and Twitter have never fallen under the definition.

Critics of HB 20 have criticized it for infringing on the First Amendment rights of private companies. Texas law violates the First Amendment because it forces social media companies to publish speech they don’t want to publish. Worse, the First Amendment theory that Texas advances in this case would give the government broad powers to censor and disrupt public debate,” Scott Wilkens, senior staff attorney at the Knight First Amendment Institute, said in a statement. a statement after the decision.

In a short battle against the law, the Knight Institute noted that “a lot of user content expresses a point of view,” so HB 20 bans sites (not just Twitter and Facebook but apparently Yelp, Reddit, Tinder, and many other sites) from enforcing community standards, including a hate speech ban. . The rules apply not only to banning users or removing content, but also to[ing] against’ content, the Knight Institute suggests, could include adding fact-checking notes or other labels.

Either way, it can send a ripple effect across the internet even if it’s retracted later.

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