On Wednesday, May 11, the Fifth Circuit Court of Appeals reinstated a Texas law that prohibits large social media platforms from banning or restricting user speech on account of political views.
The reinstatement is not a ruling on the constitutionality of the law; rather, it is a decision prompted by a Texas suit seeking to reinstate the law while it is contested in the lower federal district courts.
The law had previously been suspended in December by order of a federal district judge after industry trade groups representing some of the biggest social media companies in the country sued over its constitutionality. Such companies include Twitter, Facebook, and Google.
The circuit court issued its single-page decision Wednesday without explanation, which prompted swift criticism from a representative of one of the plaintiff groups.
Chris Marchese, an attorney for NetChoice, one of the trade groups challenging the Texas law, called the circuit court’s decision “unprecedented, unexplained, and unfortunate,” arguing the law it is reinstating is “an assault on the First Amendment” and “constitutionally rotten from top to bottom.”
Meanwhile, Texas Attorney General Ken Paxton celebrated the decision as a “BIG WIN against BIG TECH.”
The law in question is Texas House Bill 20. Governor Greg Abbott signed the bill into law in 2020 after the State Legislature passed it.
The law prohibits any social media company with over 50 million active monthly users in the U.S. from banning the accounts of Texas residents or removing their content if the content in question is not in violation of existing state or federal laws.
While no criminal penalties are stipulated in the law, it allows Texas residents to sue social media platforms if they suspect their accounts were suspended, suppressed, or banned for political reasons.
Additionally, the law requires such companies to publicly disclose the methods and mechanics of content removal and account suspensions.
Critics of the law argue that the First Amendment protects a private company’s right to moderate user content and access to its platform.
Matt Schruers, president of the Computer & Communications Industry Association, told reporters, “Forcing those companies to give equal treatment to all viewpoints puts Nazi party political speech and extremist messages from Taliban sympathizers on equal footing with God bless America.”
However, the law’s supporters, like its Senate sponsor Texas State Senator Bryan Hughes, see large social media platforms as common carriers, as stated in HB 20, which are subject to state regulation in the interest of protecting speech.
“Sadly, we have a handful of people in America today who want to control the town square, who want to control social media and want to enforce silence,” said Hughes.
