Posted on May 19, 2022

A ‘Radical’ Ruling Lets Texas Ban Social Media Moderation

Jon Brookin, Ars Technica, May 13, 2022

A FEDERAL APPEALS court has reinstated a Texas state law that bans “censorship” on social media platforms such as Facebook and Twitter, allowing Texas to enforce the law while litigation continues.

A US District Court judge had granted a preliminary injunction blocking the law in December, ruling that it violates the social networks’ First Amendment right to moderate user-submitted content. Texas attorney general Ken Paxton appealed the injunction to the US Court of Appeals for the Fifth Circuit, and a panel of three judges issued a ruling Wednesday that stayed the preliminary injunction.

The ruling did not explain the judges’ reasoning. “It is ordered that appellant’s opposed motion to stay preliminary injunction pending appeal is granted,” the ruling said. The panel ruling was not unanimous, but it didn’t say how each judge voted.

The ruling is “startlingly radical,” said Corbin Barthold, internet policy counsel at TechFreedom, a libertarian think tank that filed a brief in the court case. “Social media companies now face the prospect of liability for making distinctions based on ‘viewpoint.’ (For instance, treating pro-ISIS content differently than anti-ISIS content.) But there are many other difficulties to applying this law. No one—not lawyers, not judges, not experts in the field, not even the law’s own sponsors—knows what compliance with this law looks like,” Barthold said.

In a tweet, Paxton called the ruling a “BIG WIN against BIG TECH,” adding, “I look forward to continuing to defend the constitutionality of HB 20.” The state law says that a “social media platform may not censor a user” based on the user’s “viewpoint” and defines “censor” as “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” The Texas attorney general or users can sue social media platforms that violate this ban and win injunctive relief and reimbursement of court costs, the law says.


NetChoice and CCIA could seek an en banc hearing with all the court’s judges or eventually go to the Supreme Court. They could also wait for the trial to play out in US District Court for the Western District of Texas, where Judge Robert Pitman issued the preliminary injunction. Pitman found that the Texas law “compels social media platforms to disseminate objectionable content and impermissibly restricts their editorial discretion,” and that the law’s “prohibitions on ‘censorship’ and constraints on how social media platforms disseminate content violate the First Amendment.”


The law has exceptions allowing companies to moderate any post that a “social media platform is specifically authorized to censor by federal law; is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment; directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge; or is unlawful expression.”


When the Texas law was enacted in September 2021, the industry groups said the law could force social media to host misinformation and hate speech, and that it “seeks to punish social media companies for following policies that protect internet users from dangerous content online.”

NetChoice and CCIA separately won an injunction blocking a Florida law that would make it illegal for large social media sites like Facebook and Twitter to ban politicians and impose other restrictions on the tech companies. Florida appealed the injunction to the US Court of Appeals for the Eleventh Circuit. {snip}