November 2022 | Volume 14, Issue 4

Read the full article on CNN

Note: In addition to the article, please see the video entitled “Texas Law That Could ‘break the internet’” at the above-referenced internet address.

According to the article, a federal appeals court has agreed to suspend enforcement of Texas’ social media law restricting content moderation, in the face of a looming request by tech industry groups for the United States Supreme Court to review the case.

In a recent order, the Fifth Circuit Court of Appeals granted a stay of its earlier mandate that had paved the way for the Texas law, known as HB 20, to take effect.

HB 20 aims to expose social media platforms including Meta, YouTube, and Twitter to new private lawsuits, as well as suits by the state’s attorney general, over the companies’ decisions to remove or reduce the visibility of user content they deem objectionable.

The law is viewed as a challenge to decades of First Amendment precedent, which holds the government may not compel private entities to host speech.

In a filing leading up to the order, the technology groups challenging the Texas law said they planned to ask for the U.S. Supreme Court to rule on HB 20, and that Texas did not oppose the motion for a stay

The Supreme Court has already indicated it is open to regulating social media platforms, agreeing this month to hear two cases that could indirectly narrow the scope of the tech industry’s all-important liability shield, Section 230 of the Communications Decency Act.

Some justices, including conservatives Clarence Thomas and Samuel Alito, have explicitly cited the role and power of social media platforms as reasons the Court should step in.

Last month, Florida’s attorney general called on the Supreme Court to review a social media law in that state that is similar to Texas’ legislation. The Eleventh Circuit Court of Appeals had earlier blocked Florida’s law, saying it was likely unconstitutional.

That finding created a split with the Fifth Circuit’s decision to uphold Texas’ law, making it even more likely for the Supreme Court to take up the matter.

 

Discussion Questions

1. If social media platforms such as Meta, YouTube and Twitter restrict content, is that a violation of the user’s First Amendment (to the U.S. Constitution) rights? Why or why not?

Social media platforms such as Meta, YouTube and Twitter are not part of the government, so their restriction of content is not a violation of the user’s First Amendment rights. The language of the First Amendment reads, in pertinent part, “Congress shall make no law…abridging the freedom of speech…” Additionally, as referenced in the article, decades of First Amendment precedent holds that the government may not compel private entities to host speech. The current case could change that longstanding judicial precedent.

2. Describe Texas law HB 20.

As mentioned in the article, HB 20 aims to expose social media platforms including Meta, YouTube, and Twitter to new private lawsuits, as well as suits by the Texas attorney general, over the companies’ decisions to remove or reduce the visibility of user content they deem objectionable.

3. Should the U.S. Supreme Court ultimately hear the case? Why or why not?

In your author’s opinion, the U.S. Supreme Court should ultimately hear the case. Not only is this a First Amendment case, which makes it “ripe” for review, but both Texas and Florida are currently addressing the issue. The Supreme Court is likely to hear the case. As mentioned in the article, the Court has already indicated it is open to regulating social media platforms, agreeing this month to hear two cases that could indirectly narrow the scope of the tech industry’s all-important liability shield, Section 230 of the Communications Decency Act. Further, some justices, including conservatives Clarence Thomas and Samuel Alito, have explicitly cited the role and power of social media platforms as reasons the Court should step in.