AG Pax­ton Defends TX Anti-Cen­sor­ship Law at SCOTUS

AG Ken Paxton | Image by Kaylee Greenlee Beal for The Texas Tribune

The U.S. Supreme Court heard arguments on Monday in a pair of landmark First Amendment cases brought by Texas and Florida over laws barring social media companies from blocking unpopular opinions.

Texas Attorney General Ken Paxton, representing Texas in the case, has said that states have the right to prevent companies from discriminating against the public discourse of ideas. According to him, this is particularly true of unpopular speech, which includes political ideas that may run counter to the views held by the company.

“I look forward to defending our law which was adopted in response to a troubling trend of powerful companies unjustly silencing Americans they do not agree with,” Paxton said in a press release ahead of the hearings. “Just like the postal service and telephone companies, social media platforms function as common carriers of ordinary citizens’ communications.”

The Texas law — HB 20 — was passed in 2021 and almost immediately was faced with legal action by social media groups that claimed a First Amendment right to censor content. Texas and Florida have argued that the companies do not have a right to silence disfavorable opinions posted on the media sites.

The Texas law specifically blocks social media companies from censoring speech based on “characteristics having nothing to do with speech,” according to a brief filed by the state with the court.

“Facebook, for example, cannot discriminate against someone [under the Texas law] because she lives in Texas, is a member of a teachers’ union, or said something decades ago in a college newspaper that Facebook now deems objectionable,” the brief states.

Lawsuits were initially brought challenging the laws by two technology-based trade associations. The groups argue that social media companies are privately owned and hold First Amendment rights to remove content and block users, similar to the way newspapers are permitted the same type of editorial discretion.

Early indications from the court show that the justices are largely divided on how best to handle these two laws. However, they might have a larger consensus in appearing doubtful of the Florida law because it is potentially overbroad. For instance, according to CNN, several justices commented on how the Florida law could be applied to entities including Etsy, Uber, and Google’s search algorithm.

Other justices have pointed out that the First Amendment prevents the government from taking action to censor speech but does not bar private companies from doing so.

“The First Amendment restricts what the government can do,” said Chief Justice John Roberts of Texas’ position on the matter, per CNN. “What the government’s doing here is saying, ‘you must do this, you must carry these people — you’ve got to explain if you don’t.’ That’s not the First Amendment.”

Both the Texas law and the Florida law came about after revelations that social media companies intentionally blocked right-leaning content, particularly during the administration of former President Donald Trump. The issue also came to light during the COVID-19 pandemic when social media companies — after being pressured by President Joe Biden’s administration — blocked content that did not fall in line with the government messaging, as reported by The Dallas Express.

Up to this point, the courts have been unable to find a consensus on designating social media companies. The Florida law was overturned by the Eleventh Circuit Court of Appeals, while the Fifth Circuit upheld the Texas law.

Both cases have been before the Supreme Court before, at which time they were sent back to the lower courts. As previously reported in The Dallas Express, the lower courts were said to have not heard the merits of the cases but rather filed injunctions to keep the laws from taking effect.

The outcome of the two cases could have a substantial bearing on a broad range of activities by social media companies, including forcing them to disclose how the filtering algorithms they use function and what content they intentionally suppress.

Attorneys representing the tech companies have argued that upholding the laws could lead to social media platforms significantly updating their business models or even abandoning services in the states to avoid having to allow undesirable content that could be interpreted as protected expression under the legislation.

Paul Clement, the tech industry’s attorney, said some social media sites might switch to allowing “only puppy dogs” on their platforms to keep from being accused of discriminating against speech, per CNN.

Further, he argued that “these laws make it impossible for us to keep material that’s harmful to children off of our sites, unless we take so much material off of our sites that nobody can [allege] viewpoint discrimination.”

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