TR Daily NetChoice, CCIA Challenge Texas Social Media Platform Law
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Wednesday, September 22, 2021

NetChoice, CCIA Challenge Texas Social Media Platform Law

NetChoice LLC and the Computer & Communications Industry Association have filed a lawsuit in the U.S. District Court for the Western District of Texas (Austin Division) seeking declaratory and injunctive relief from the enforcement of recently enacted Texas legislation (HB 20) that requires transparency, reporting, and appeals procedures for content moderation by social media platforms and prohibits “censoring” based on the viewpoint of users or specific content.

“At bottom, H.B. 20 imposes impermissible content- and viewpoint-based classifications to compel a select few platforms to publish speech and speakers that violate the platforms’ policies—and to present that speech the same way the platforms present other speech that does not violate their policies. Furthermore, H.B. 20 prohibits the platforms from engaging in their own expression to label or comment on the expression they are now compelled to disseminate. And in light of the statute’s vague operating provisions, every single editorial and operational choice platforms make could subject those companies to myriad lawsuits,” the plaintiffs said their complaint in NetChoice LLC and Computer & Communications Industry Association v. Ken Paxton (civil action 1:21-cv-00840).

“These restrictions—by striking at the heart of protected expression and editorial judgment—will prohibit platforms from taking action to protect themselves, their users, advertisers, and the public more generally from harmful and objectionable matter. At a minimum, H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation. In fact, legislators rejected amendments that would explicitly allow platforms to exclude vaccine misinformation, terrorist content, and Holocaust denial,” they added.

The legislation’s mandates regarding transparency about content-management policies and procedures, reporting on the application of those policies and procedures in individual cases, and operation of an appeals procedure are “designed to prescriptively manage—and therefore interfere with and chill—platforms’ exercise of editorial discretion. In a series of intrusive provisions, H.B. 20 requires ‘social media platforms’ to publish how they intend to exercise their discretion, document in excruciating detail how they exercise their editorial discretion over potentially billions of pieces of content, and operate inherently burdensome and unworkable individualized complaint mechanisms—all of which together work to compel or otherwise challenge the platforms’ countless daily uses of editorial discretion,” NetChoice and CCIA said.

“The hopeless indeterminacy of many of H.B. 20’s provisions will only invite arbitrary—and potentially discriminatory—enforcement by the Attorney General and by private plaintiffs,” they said.

They noted the recent decision by the U.S. District Court for the Northern District of Florida to grant a preliminary injunction against a similar Florida social media law, based on its finding that the petitioner, NetChoice, was likely to prevail given the protections afforded to social media platforms in section 230 of the Communications Decency Act (TR Daily, July 1). The federal court in Florida also noted that the First Amendment doesn’t restrict the actions of private entities that aren’t performing “traditional, exclusive public functions” and that “state authority to regulate speech has not increased even if, as Florida argued nearly 50 years ago and is again arguing today, one or a few powerful entities have gained a monopoly in the marketplace of ideas, reducing the means available to candidates or other individuals to communicate on matters of public interest.”

“Though the laws differ in their specifics, Florida’s law and H.B. 20 here both infringe on the editorial discretion that the First Amendment protects, and the Texas Attorney General himself has called the two laws ‘similar,’” NetChoice and CCIA told the federal court in Texas.

They asked for “a declaration that Sections 2 and 7 of H.B. 20 are unconstitutional, unlawful, and unenforceable, and an injunction prohibiting the Attorney General from enforcing Sections 2 and 7 against Plaintiffs and their members.”

In a statement, CCIA President Matt Schruers said, “By tying digital services’ hands, this unconstitutional law will put Texans at greater risk of exposure to disinformation, propaganda, and extremism. There are few First Amendment fouls clearer than regulating based on viewpoint. The law aside, it’s neither good policy nor good politics for Texas to make the Internet a safe space for bad actors, whether that be Taliban sympathizers or people encouraging kids to eat detergent pods.

“By constraining businesses’ free speech rights, the Texas law puts anti-American rhetoric on equal footing with God Bless America. Compelling digital services to treat all political viewpoints—even Nazis and white supremacists—equally to those of everyday Americans is bad policy, bad politics, and unconstitutional. Texas’s Fairness Doctrine for the internet won’t survive this challenge,” Mr. Schruers added. —Lynn Stanton, [email protected]

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