5th Circuit Appeals Court Revives Texas Moderation Ban Law

The Texas moderation ban law has been revived by the 5th Circuit Court of Appeal, reversing a lower court decision.

Back in September of last year, we reported on the Texas moderation ban law becoming law. The law would effectively ban moderation on social media. More specifically, it would criminalize removal of content on large social media outlets that are based on “political viewpoints”. Conveniently, the law does not apply to the plethora of conservative platforms that failed to really garner a following significant enough to even come close to challenging Twitter.

Of course, it didn’t take long for the law to be challenged. A lawsuit was filed by NetChoice and the Computer and Communications Industry Association. The lawsuit cites the first amendment for why the law is unconstitutional. In October, the Electronic Frontier Foundation filed an amicus brief supporting NetChoice. They explain that the law forces platforms to publish speech that they do not agree with. They also explain that this is a violation of the constitution which does permit platforms to moderate and curate content.

In December, the judge sided with NetChoice and the EFF, saying, “HB 20 prohibits virtually all content moderation, the very tool that social medial platforms employ to make their platforms safe, useful, and enjoyable for users”. The law was ultimately struck down at that court level. Naturally, the state has plenty of resources to fight these lawsuits. So, it appealed.

Recently, we learned that the 5th Circuit Court of Appeal has reversed the lower court decision. From CNET:

A federal appeals court on Wednesday ruled that a Texas law that prohibits large social media companies from banning users or blocking posts based on political viewpoints can go into effect.

The 5th US Circuit Court of Appeals’ decision, which was published without the court’s reasoning, stayed a district court’s injunction that paused the law — HB20 — while the state appeals a lower court order that had blocked it. The preliminary injunction was issued in December by US Judge Robert Pitman for the Western District of Texas, who wrote that social media companies have a First Amendment right to moderate content on their platforms.

The decision is seen as a win for conservative critics who argue the companies censor content for ideological reasons — a claim the social media firms have repeatedly denied. Critics of the law counter that it would force social media companies to leave offensive content, hate speech and misinformation on their platforms.

“Given the stakes, we’ll absolutely be appealing,” Chris Marchese, a lawyer representing NetChoice, one of the organizations that filed the suit against the Texas law, said in a tweet Wednesday afternoon. “HB 20 is unconstitutional through and through.”

Unless something particularly extraordinary happens in the process, it’s hard to not see the case make it all the way up to the US Supreme court. Given the Supreme Courts draft decision to overrule the constitution and overturn Roe v Wade based on ideology, the case is far from a slam dunk for those who think content moderation should be allowed on platforms.

Still, this latest development will revive the law for the time being. It will obviously go through the other level of courts, but that will take time. After all, it took from December to now to make it to the next level, so we’ll at least be months away from movement of any kind. It’s actually common for lawsuits that make it all the way to the US Supreme Court to take years to go from the first decision to the final ruling. So, it’ll be a while before this case is even remotely final at this point given how early on in the process we are at now.

Drew Wilson on Twitter: @icecube85 and Facebook.

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