The US Court of Appeals for the Fifth Circuit Friday ruled that Texas law HB 20, which prohibits social media platforms from censoring users “based on viewpoint” and requires them to release biannual transparency reports, is constitutional. Judge Andrew S. Oldham wrote the opinion, and judge Edith H. Jones concurred.
HB 20 generally prohibits large social media platforms from censoring speech based on the speaker’s viewpoint. In addition, the law regulates large social media platforms like Facebook, Twitter, and YouTube and requires tech platforms to disclose how they moderate and promote content and publish an acceptable use policy and a biannual transparency report.
Tech trade groups challenged the law in the US District Court for the Western District of Texas, arguing that it was unconstitutional and would prevent platforms from removing extremism and hate speech. The district court issued a preliminary injunction and ruled that the law is unconstitutional on its face. The plaintiffs appealed the decision, and the Fifth Circuit suspended the injunction. However, the Supreme Court vacated the injunction’s suspension and remanded the case back to the Fifth Circuit.
The Fifth Circuit ruled that the law is constitutional and rejected the idea that corporations have a “freewheeling First Amendment right to censor what people say.” Texas Attorney General Ken Paxton called the ruling “a MASSIVE VICTORY for the Constitution & Free Speech.” However, Jameel Jaffer, director of the Knight First Amendment Institute, criticized the ruling, claiming, “[t]he First Amendment protects the right of editors not to publish things they don’t want to publish. There are some questions at the margins, but this is about as well-settled a First Amendment principle as there is.” Jaffer believes the plaintiffs will appeal to the Supreme Court.