May 16, 2022 |
Without Explanation, Court Lifts Injunction on New TX Social Media Law |
Last week, a divided panel of judges from the U.S. Court of Appeals for the Fifth Circuit lifted a lower courtâs injunction staying the enforcement of a new Texas law that prohibits private social media platforms from exercising viewpoint-based editorial discretion. While supporters of the new law describe it as an anti-censorship measure designed to protect social media users from the censorious whims of âBig Techâ operations, critics argue that the law serves to turn the First Amendment on its head, depriving private entities of their First Amendment right to moderate and curate content on their platforms. NetChoice, a trade organization with members who operate social media platforms subject to the Texas law, challenged the statute, arguing that the law violates the First Amendment rights of its members. In the injunction awarded in December, District Court Judge Robert Pitman wrote that âsocial media platforms have a First Amendment right to moderate content disseminated on their platforms.â âThe Supreme Courtâs holdings in Tornillo, Hurley, and PG&E, stand for the general proposition that private companies that use editorial judgment to choose whether to publish contentâand, if they do publish content, use editorial judgment to choose what they want to publishâcannot be compelled by the government to publish other content,â Pitman added in his ruling. âThat proposition has repeatedly been recognized by courts.â In granting the injunction, Pitman wrote that the plaintiffs had shown the âlikelihood of success on the meritsâ of the case, noting several constitutional flaws in the statute, including its vagueness, overbreadth and discrimination âbased on content and speaker.â Since the Fifth Circuit panel has yet to issue any explanation for its decision to lift the injunction. Attorney Raffi Melkonian, an appellate attorney with Wright, Close & Barger, LLP in Houston, Texas, who practices in the Fifth Circuit, tweeted the ruling is âconsistent with the statements made by Judges Oldham and Jones during the oral argument the other day.â After the Fifth Circuit issued its order, NetChoice counsel Chris Marchese tweeted that âGiven the stakes, we’ll absolutely be appealingâ adding âHB 20 is unconstitutional through and through.â Observers didnât have to wait long to see how NetChoice would respond. The plaintiffs have now filed an emergency application with the U.S. Supreme Court, asking the court to reinstate the injunction and stay enforcement of the law. In their emergency application, the plaintiffs assert that if the law is permitted to go into effect, it would âcompel platforms to disseminate all sorts of objectionable viewpointsâsuch as Russiaâs propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders.â Platforms subject to the law would âimmediate irreparable injury many times over,â NetChoice adds in its application. âUnrebutted record evidence demonstrates that it will be impossible for these websites to comply with HB20âs key provisions without irreversibly transforming their worldwide online platforms to disseminate harmful, offensive, extremist, and disturbing contentâall of which would tarnish their reputations for offering appropriate content and cause users and advertisers to leave,â the plaintiffs argue. Regardless of whether the injunction is reinstated or the law ultimately survives court scrutiny, the new Texas statute will offer no help to members of the adult industry who find their sexually-explicit speech blocked or taken down, despite being presented as an anti-censorship measure. The law allows platforms to have and enforce acceptable use and content policies, provided those policies are publicly disclosed and enforced consistently, as described by the law. Other than rare exceptions like Twitter, most larger social platforms prohibit posting sexually-explicit content â and they will likely continue to do so, regardless of how the wrangling over the Texas law (or the similar, currently enjoined law in Florida) plays out. |