Federal Court Deals Major Blow To Big Tech And Sets Up SCOTUS To Restore Free Speech
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MARGOT CLEVELAND
SEPTEMBER 19, 2022
PROFESS CLEVELAND WRITES THE LONGEST BUT BEST ARTICLES
Supreme Court review of these laws will prove a victory for conservatism, as the originalist majority can cast aside evolving standards and return to the roots of the First Amendment.
A Texas law prohibiting social media platforms, such as Twitter and Facebook, from discriminating against users based on their speech does not violate the First Amendment, a federal appellate court held on Friday. Conservatives, whose speech represents the overwhelming target of censorship, are cheering the Fifth Circuit’s decision in NetChoice v. Paxton. A different federal court, however, struck down Florida’s law prohibiting Big Tech from censoring political speech, setting up a Supreme Court review in the near future.
NetChoice v. Paxton
In September of 2021, Texas passed House Bill 20, a state statute that regulates Big Tech companies — i.e., social media websites with more than 50 million monthly users. Before HB 20 went into effect, NetChoice and the Computer & Communications Industry Association, trade associations representing social media sites, sued Texas Attorney General Ken Paxton, arguing Section 7 and Section 2 of the law violated the First Amendment.
Section 7 of HB 20 regulates the platforms’ ability to censor users’ posts, prohibiting censorship — defined broadly to include blocking, de-boosting, reducing visibility, and other mechanisms of discrimination — based on the viewpoint of the post. This provision applies to censorship of users who reside in, do business in, or share or receive expression in Texas.
HB 20 allows for the continuing censorship of illegal speech as well as posts related to the sexual exploitation of children, harassment of survivors of sexual abuse, speech that directly incites criminal activity, or posts that consist of specific threats of violence targeting “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.”
Under the law, illegally censored users or the Texas attorney general may sue Big Tech giants that violate Section 7, but they cannot recover monetary damages; rather, a court may only issue a ruling declaring that a violation has occurred and enter an injunction ordering the platform to comply with the law. If successful, costs and attorney’s fees are also recoverable.
The platforms also challenged certain disclosure and operational requirements established in Section 2 of HB 20, such as Texas’s statutory mandate that the tech companies disclose “how they moderate and promote content and publish an ‘acceptable use policy.’” Section 2 also requires platforms to publish a “biannual transparency report” that provides statistics detailing content-moderation decisions and the creation of a complaint-and-appeal system. Only the Texas attorney general may enforce Section 2, and again, damages are not recoverable.
In challenging HB 20, the tech companies argued that the Texas statute violates their First Amendment right to free speech, which Supreme Court precedent makes clear includes the right not to speak. The tech companies then argued that the act of hosting (or rejecting) speech is its own protected speech, and thus the First Amendment prohibits the government from interfering in that “speech.” Section 2’s disclosure requirements likewise violate the First Amendment, the tech giants argued, because the mandates are “unduly burdensome.”
A federal district court judge agreed with the tech companies’ arguments and in December entered a preliminary injunction against Texas, prohibiting enforcement of the law. Texas then sought a “stay” of the trial court’s injunction, asking the Fifth Circuit Court of Appeals to freeze the lower court’s preliminary injunction and allow HB 20 to go into effect.
While the Fifth Circuit granted the stay, the United States Supreme Court “vacated” or overturned the stay, keeping the preliminary injunction in place pending resolution of the appeal. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented from the Supreme Court’s vacatur of the stay, and in doing so previewed the importance and complexity of this case. More on that later.
https://thefederalist.com/2022/09/19/federal-court-deals-major-blow-to-big-tech-and-sets-up-scotus-to-restore-free-speech/