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#NoFilter: Can states regulate content on social media platforms? | Cozen O’Connor

In this edition of #NoFilter, we’ll examine a recent September 16, 2022 decision from the Fifth Circuit Court of Appeals upholding a Texas state law impacting the power of social media platforms to moderate content on their platforms. NetChoice, LLC v. Paxton1 creates a split circuit between the Fifth Circuit and the Eleventh Circuit over the limits of free speech and the state’s ability to regulate speech on social media. As is usually the case with issues involving a division of authority between the circuits, the United States Supreme Court has been asked to settle the debate as this case reaches its threshold.

NetChoice, LLC v. Paxton

Plaintiffs NetChoice and the Computer & Communications Industry Association are trade associations that represent companies operating social media platforms. These organizations are challenging Texas House Bill 20 (HB 20), which largely prohibits social media platforms from censoring speech based on point of view.

The most controversial part of HB 20 is section 7, which provides:

“A social media platform may not censor a user, a user’s expression, or a user’s ability to receive another person’s expression based on: (1) a user’s perspective user or another person; (2) the point of view represented in the User’s Expression or another person’s Expression; or (3) a user’s geographic location in that state or any part of that state. »

The NetChoice plaintiffs sued the Texas Attorney General on September 22, 2021, before HB 20 took effect, and obtained a preliminary injunction from the district court on December 1, 2021. The Texas Attorney General appealed the injunction before a three-judge panel at the Fifth Circuit.

The plaintiffs allege that HB 20 violates First Amendment rights by limiting their ability to moderate, curate and decide what content to feature on their platforms. They liken themselves to newspapers that exercise freedom of speech by deciding what to print and what not to print. The Texas Attorney General has argued that this activity is veiled censorship rather than free speech. Instead, Texas HB 20 protects free speech from social media platforms that attempt to “nullify or censor conservative free speech.” Texas is urging the court to consider social media platforms similar to common carriers that should provide equal access to everyone on their platforms.

In the 2-1 split decision, the Fifth Circuit Court of Appeals reversed the district court’s injunction. The majority said, “We reject the idea that corporations have a free First Amendment right to censor what people say.” The split decision asserts that HB 20 chills censorship, not speech, and that the law itself is content-neutral. The plaintiffs immediately appealed the decision to the Supreme Court.

This decision follows another similar case involving NetChoice. In May, NetChoice sued Florida over a similar social media law called SB 7072, which attempted to prevent social media platforms from “censoring” and “de-platforming” users. The law also allows fines of $250,000 a day for suspending the accounts of job applicants statewide for more than 14 days. It also authorizes fines of $25,000 a day for misrepresenting any other candidate for public office.

As with the Texas law, a district court issued a temporary injunction before the law took effect. Unlike Texas law, the Circuit Court of Appeals upheld the injunction on the grounds that Florida’s SB 7072 was unconstitutional and violated the First Amendment. Specifically, the Court noted that “fundamental principles of freedom of speech and of the press, like the commandment of the First Amendment, do not change when a new and different medium appears.” Social media companies “commit[ ] in constitutionally protected expression when they moderate and curate the content they post on their platforms. As an example, the Eleventh Circuit noted that Florida law was “so broad that it would prohibit a child-friendly platform like YouTube Kids from removing or even adding an age restriction to pornography. soft-core published by PornHub, which qualifies as a “journalistic company” [under S.B. 7072] as it publishes over 100 hours of video and has over 100 million viewers per year. Finally, unlike the Fifth Circuit, the Eleventh Circuit rejected Florida’s argument that social media platforms should be treated as common carriers that should provide service to everyone. Following the Eleventh Circuit’s decision, the State of Florida appealed to the Supreme Court.

The rulings of the Fifth and Eleventh Circuits contradict each other, creating a split in authority over the matter. Both cases have been appealed to the Supreme Court. If granted, it would be the first time the High Court has ruled on the role of social media giants and the First Amendment. These rulings are crucial and can fundamentally change the way social media companies regulate all types of speech on their platforms, including hate speech, political speech, or any speech that can be seen as expressing a point. of sight. The issues in these cases have far-reaching impact that is of national significance and may set the rules for social media content regulation in the future.

1 NetChoice, LLC v. Paxtonno. 21-51178, 2022 WL 4285917 (5th Cir. September 16, 2022).