Texas law to punish alleged censorship on social media is pending an appeal to the US Supreme Court. But Texas secessionists are trying to use the law in a class-action lawsuit against Facebook’s parent company.
The Texas Nationalist Movement and its president, Daniel Miller, are seeking an injunction against Meta Platforms under House Bill 20, saying Meta’s ban on posts including a link to its website is illegal censorship.
“Plaintiffs suffer immediate and irreparable harm every day that Meta continues to censor Plaintiffs,” the plaintiffs’ petition said. “And as the United States Supreme Court and the Fifth Circuit have both held,”[t]The loss of First Amendment freedoms, even for minimal periods of time, arguably constitutes irreparable harm.”
The problem for the plaintiffs is that US 5Th The Circuit Court of Appeals has stayed enforcement of HB 20 pending an appeal to the US Supreme Court by two trade groups representing major social media platforms – NetChoice and the Computer & Communications Industry Association (CCIA). The two entities are suing Texas to overturn HB 20, arguing that the law violates the platforms’ First Amendment right to moderate their own content.
The Texas Nationalist Movement and Miller “are trying to enforce a law that has stalled. The 5Th The circuit stayed the issuance of its mandate, so the law is not in effect right now, said Tom Leatherbury, director of the First Amendment Clinic at Southern Methodist University’s Dedman School of Law.
HB 20 prohibits social media platforms with more than 50 million users from removing an account holder for what it calls “vision discrimination.” Under the law, a banned user can sue a social media platform for reinstatement. If that person cannot find a private attorney, the Texas Attorney General can file a lawsuit on that person’s behalf.
Texas lawmakers passed HB 20 last year after the accounts of several high-profile conservatives, most notably former President Donald Trump, were removed from Twitter and Facebook for what the platforms deemed violations of their terms of service. They argued that social media platforms are the equivalent of common carriers such as telephone service and cable service providers. As such, they are subject to regulation.
From Leatherbury’s perspective, the Texas Nationalist Movement’s lawsuit proves “only that HB 20 will make the Internet virtually ungovernable, because platforms like Meta will not be able to enforce their terms of service. They will not be able to moderate content with impunity as they can now under Section 230 (in Communications Decency Act).”
Leatherbury disagrees with the verdict of the 5Th Circuit. He agrees with a contrary decision of the 11thTh Circuit Court of Appeals, which struck down a similar social media censorship law passed by Florida. The fact that the two circuits issued conflicting rulings makes it likely that the issue will ultimately have to be resolved by the Supreme Court.
“About 5Th The circuit’s decision i NetChoice (v. Paxton) stands,” Leatherbury said, “I think this lawsuit (by the Texas Nationalist Movement) is just the tip of the iceberg in terms of the kind of lawsuits you’re going to see filed against the biggest platforms subject to the law. And I think that’s a real shame, and I think the First Amendment is worse for it.”
Chris Marchese, attorney for NetChoice, agrees. Marchese is one of the attorneys involved in the trade group’s lawsuit against Texas to try to strike down HB 20. He argues that it is the First Amendment rights of social media platforms themselves that are under attack.
“The real risk is that (HB 20) simply allows the worst people in our society to basically exercise a heckler’s veto over the platforms,” Marchese said. “When you disagree with one of their content moderation decisions, you can go to court, and even if you don’t win, you’re still forcing the platform to defend against your lawsuit, and so it’s a distraction. And it implements a real cost for content moderation, and ultimately it will have a negative effect on everyone else who uses the Internet for legitimate reasons.”
Marchese argued that HB 20 and the 5th Circuit’s decision to uphold it knock accepted definitions of free speech and censorship on their heads. Historically, censorship has referred to government restriction of speech.
“This idea that the government can force any private party to host somebody else’s speech, the implications of that are insane,” Marchese said. “Imagine if the government could force The Wall Street Journal to carry a comment from Senator Elizabeth Warren or about The New York Times was forced to carry a comment from Senator Tom Cotton. It boggles the mind to think that a federal court could construe the First Amendment as allowing the government to compel private individuals to do the bidding for others.”