Texas Social Media Law Blocked; Gov. Abbott to 'Immediately Appeal'

Just hours before the Texas law would have taken effect at midnight, U.S. District Judge Robert Pitman in Austin said Wednesday that NetChoice and the Computer and Communications Industry Association (CCIA) would likely succeed on the merits in case 1:21-cv-00840. While the case continues, Texas may not enforce the law that prohibits larger platforms from blocking, deplatforming or otherwise discriminating against users based on viewpoint or location within Texas. NetChoice and CCIA said that violated the First Amendment. Earlier this year, the U.S. District Court in Tallahassee blocked Florida’s similar law and the state appealed to the 11th U.S. Circuit Court of Appeals in case 21-12355 (see 2111090062).

“Social media platforms have a First Amendment right to moderate content disseminated on their platforms,” Pitman wrote. The law’s section restricting moderation and another requiring disclosures “are replete with constitutional defects, including unconstitutional content- and speaker-based infringement on editorial discretion and onerously burdensome disclosure and operational requirements,” he said. “The irreparable harm to Plaintiffs’ members outweighs any harm to the State from a preliminary injunction.”

“Allowing biased social media companies to cancel conservative speech is hostile to the free speech foundation America was built on,” Abbott’s spokesperson emailed. “We will always fight to defend Texans’ freedom of speech. Our office is working with the Office of the Attorney General to immediately appeal this ruling and protect Texans’ First Amendment rights.” Texas Attorney General Ken Paxton (R) and the law’s sponsor, Texas Sen. Bryan Hughes (R), didn’t comment.

Marchese expected Paxton to face “political pressure” to appeal to the 5th U.S. Circuit Court of Appeals. “This is a law that matters a lot to” Abbott and that “was promoted quite heavily by its sponsors.” It wouldn’t be surprising, said CCIA President Matt Schruers. “Some policymakers continue to think that attempting to legislate more Nazis into your social media feed is good politics.”

At the district court, plaintiffs will consider filing a motion for summary judgment since they believe the case is “entirely a question of law,” said Marchese. Schruers predicted Texas will oppose the possible motion on the grounds that it needs to “resolve whatever factual questions will allow it to continue its fishing expedition.”

In the Florida case, Schruers predicted 11th Circuit oral argument in Q1. For other states, he hopes Wednesday’s decision shows that “not only is this bad law” but also “bad politics.” NetChoice testified against social media regulation bills by Republicans and Democrats in about 25 states last year, noted Marchese. “This is a challenge that’s going to continue for the next few years.” The two injunctions will give some lawmakers “pause,” but there also will be “partisans who say, ‘Who cares?’”

Not Carriers

Pitman disagreed with Texas that social media companies are common carriers. "Unlike broadband providers and telephone companies, social media platforms “are not engaged in indiscriminate, neutral transmission of any and all users’ speech,” the judge said. "User-generated content on social media platforms is screened and sometimes moderated or curated. The State balks that the screening is done by an algorithm, not a person, but whatever the method, social media platforms are not mere conduits."

Social media sites “curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content," Pitman wrote. "Without editorial discretion, social media platforms could not skew their platforms ideologically, as the State accuses of them of doing.” The law’s text, case law, and Abbott and state legislators’ statements “all acknowledge that social media platforms exercise some form of editorial discretion, whether or not the State agrees with how that discretion is exercised.” The law’s disclosure and operational requirements burden social media platforms' editorial discretion, Pitman said.

The law "imposes content-based, viewpoint-based, and speaker-based restrictions that trigger strict scrutiny,” said Pitman. “Even under the less rigorous intermediate scrutiny," Texas must prove the law is narrowly tailored for a significant government interest, he said. “The proclaimed government interests here fall short under both standards.”

The decision “vindicates” CCIA’s position that “governments have no business telling digital services how they can and cannot moderate their platforms,” said Schruers. Pitman’s decision was “mainstream," he said. “It is strong in its content, but the outcome is entirely in the core of what American First Amendment jurisprudence says.”

Marchese sees possible interplay between Texas and Florida courts, he said. The Texas judge quoted the Florida decision in his analysis. “They are reading each other’s opinions” and “analyzing each other’s … reasoning,” said the NetChoice official: The Texas judge shutting down the state’s argument that social media platforms are common carriers is one thing that could come up at the 11th Circuit.

“Judge Pitman's opinion reaffirms the fundamental principle that the government is not free to simply ignore the First Amendment whenever it feels like it,” emailed TechFreedom Free Speech Counsel Ari Cohn. “The notion the state can demand private parties explain the reasoning behind their First Amendment activity is similarly contrary to expressive rights, and the court's deft, incisive dismissal of Texas' protestations was welcome, if expected. … Other states should think twice before saddling their taxpayers with the bill for a losing battle against the First Amendment.”