Texas Social-Media Law on Web Censorship Upheld by Federal Appeals Court

Joe Schneider and Alex Barinka, Bloomberg News

(Bloomberg) -- A federal appeals court upheld the validity of a Texas social media law that companies like Meta Platforms Inc. and Twitter Inc. say will prevent them from blocking hate speech and extremism.

The 5th US Circuit Court of Appeals in New Orleans on Friday lifted a lower court injunction that had blocked the legislation from taking effect.

The Texas law bars social media platforms with more than 50 million users from discriminating on the basis of viewpoint. Texas Governor Greg Abbott and other Republicans argue the legislation is needed to protect conservative voices from being silenced. But tech groups say the measure unconstitutionally bars platforms from removing neo-Nazi and Ku Klux Klan screeds or Russian propaganda about its invasion of Ukraine.

“We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” a panel of judges on the appeals court said. “The platforms are not newspapers. Their censorship is not speech.”

The judges remanded the case back to the lower court for further proceedings, consistent with their opinion.

NetChoice, a trade group representing Facebook owner Meta and other internet companies, said it was disappointed with the decision, which “undermines First Amendment protections.”

“Balancing free expression and online safety is what makes the internet usable,” the group said in a statement. “When going online, no one should be forced to wade through awful and offensive content.”

The majority opinion was written by Judge Andrew Oldham, who was nominated to the bench by President Donald Trump. Judge Edith Jones, a nominee of President Ronald Reagan, agreed with Oldham. Judge Leslie Southwick, a nominee of President George W. Bush, partly dissented with the majority.

Abbott signed the legislation, known as HB20, a year ago as part of a broader Republican push against what the party sees as censorship of its viewpoints.

Critics of the law have said it will wreak havoc on social media platforms by removing their ability to moderate and remove content that falls outside user guidelines. It would also allow Texas residents to sue platforms if posts are removed by claiming that their content is being censored.

The law runs counter to rising pressure on social media platforms to tighten their rules on content moderation and more effectively ban posts that incite violence or harm. This week, executives from Meta, YouTube, Twitter and TikTok testified before a Senate committee and faced questions over what the companies are doing to protect users.

A similar law in Florida was struck down by the 11th US Circuit Court of Appeals in Atlanta. In its statement, NetChoice noted that that decision was unanimous. The group had hoped that the New Orleans panel would follow the same path.

“We will not,” the judges wrote in their decision. “Florida’s and Texas’s laws are very different.”

The latest ruling “creates a circuit split with the unanimous decision of the 11th Circuit,” said Carl Szabo, NetChoice’s vice president and general counsel. “We remain convinced that when the US Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms and apps.”

(Updates with NetChoice comment starting in sixth paragraph.)