The controversy surrounding the Texas social media law, initially signed in 2021, continues to unfold as it returns to the lower courts for further examination. This legislation, known as H.B. 20, compels platforms such as X, Facebook, Instagram, and YouTube to not only publish regular reports detailing removed content but also to establish a system for complaints and reveal their methods for moderating content. Ostensibly, the law aims to prevent these companies from banning users based on political opinions.
We obtained a copy of the opinion for you here.
The case was escalated to the US Court of Appeals for the Fifth Circuit following a decision by the Supreme Court, which refrained from making a definitive judgment on the law’s constitutionality concerning similar statutes in Texas and Florida. Instead, the Supreme Court directed the lower courts to resolve the First Amendment issues presented, leading the Fifth Circuit to delegate the Texas case back to the Western District of Texas for a thorough reevaluation.
NetChoice and the Computer & Communications Industry Association, plaintiffs in the case, have argued that H.B. 20 infringes on the First Amendment rights of social media platforms. This Texas law, enacted in 2021, mandates platforms like Facebook, Instagram, and YouTube to generate regular reports on removed content, establish a complaint system, and disclose their content regulation procedures. Its primary aim is to prevent social media companies from banning users based on political viewpoints.
Authored by Circuit Judge Andrew S. Oldham, the opinion from the Fifth Circuit instructs the district court to identify the full scope of activities and actors covered by H.B. 20, a task that will require a detailed understanding of each platform’s content moderation practices. Judge Oldham’s opinion highlights the necessity of this exploration, countering Texas’s argument against the need for such in-depth inquiry by emphasizing that understanding the specific burdens on websites is crucial to determining if they face undue restrictions on their expressive activities.
“Who is covered by Texas House Bill 20 (‘H.B. 20’)?” the order asks. “For these actors, which activities are covered by H.B. 20? For these covered activities, how do the covered actors moderate content?”
“The Court stated that H.B. 20, ‘at least on [its] face, appear[s] to apply beyond Facebook’s News Feed and its ilk.'”
The order also stated that “To determine if any given application of H.B. 20’s ‘content-moderation provisions’ is unconstitutional, the district court must determine ‘whether there is an intrusion on protected editorial discretion.'”
In the appellate court, Circuit Judge Andrew S. Oldham’s ruling underscored the necessity for the district court to clarify the scope of H.B. 20, specifying which entities and activities fall under its purview. Oldham’s instructions came on the heels of the Supreme Court’s assessment that the case was inadequately developed, posing numerous fact-intensive questions needing resolution.
