Trade organisations NetChoice and the Computer and Communications Industry Association (CCIA)—representing Amazon, Google, Facebook, Apple, and other tech companies—on May 13 appealed to the US Supreme Court for an emergency stay of the Texas social media law known as HB 20, which prohibits large social media platforms from censoring and banning users based on their “views.” But social media companies are private entities and the First Amendment allows them to make content decisions as they see fit, tech companies argue.
“Texas HB 20 strips private online businesses of their speech rights, forbids them from making constitutionally-protected editorial decisions, and forces them to publish and promote objectionable content,” said Chris Marchese, Counsel for NetChoice. “The First Amendment prohibits Texas from forcing online platforms to host and promote foreign propaganda, pornography, pro-Nazi speech, and spam,” Marchese added.
HB20 was signed into law by Texas Governor Greg Abbott in September 2021 but was immediately challenged by NetChoice and CCIA, following which a US district judge issued a preliminary injunction in December before the law went into effect. But the injunction was lifted by an appeals court on May 11, 2022, prompting the two trade organisations to approach the Supreme Court, arguing that the Texan law is unlawful and the one-line order of the appeals court does not provide any explanation. If the Court grants an emergency stay, HB 20 will once again be blocked, pending further legal proceedings.
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What are the provisions of the Texas social media law?
All social media companies with more than 50 million active users per month are subject to the following rules according to the HB20 law:
Censorship prohibited: Social media platforms are not allowed to censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:
- the viewpoint of the user or another person;
- the viewpoint represented in the user’s expression or another person’s expression;
- a user’s geographic location in this state or any part of this state.
“Censor” is defined as any action taken to edit, alter, block, ban, delete, remove, deplatform, demonetize, de-boost, regulate, restrict, inhibit the publication or reproduction of, or deny equal access or visibility to expression, to suspend a right to post, remove, or post an addendum to any content or material posted by a user, or to otherwise discriminate against expression.
This provision applies regardless of whether the viewpoint is expressed on a social media platform or through any other medium, but only to users who reside, do business, or share or receive expression in Texas.
- Exceptions: The exceptions to the censorship provision are content that is prohibited by federal law, sexual abuse content targeted towards children or survivors of sexual assault, content that directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, colour, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.
Disclosure requirements: The law requires social media platforms to disclose accurate information regarding their content management, data management, and business practices, including specific information regarding the manner in which the social media platform:
- curates and targets content to users
- places and promotes content, services, and products, including its own content, services, and products
- moderates content
- uses search, ranking, or other algorithms or procedures that determine results on the platform
- provides users’ performance data on the use of the platform and its products and services
Furthermore, the above disclosures must be published on an easily accessible website and must be sufficient to enable users to make an informed choice regarding the use of a platform.
Acceptable use policy: Social media platforms should publish an acceptable use policy in a location that
is easily accessible to a user and the policy must:
- reasonably inform users about the types of content allowed on the social media platform
- explain the steps the social media platform will take to ensure the content complies with the policy
- explain the means by which users can notify the social media platform of content that potentially violates the acceptable use policy, illegal content, or illegal activity, which includes
- an e-mail address or relevant complaint intake mechanism to handle user complaints
- a complaint system that allows users to track the status of their complaint
- notify users if their content is removed according to the policy and provide an opportunity for appeal
Bi-annual transparency report: Platforms must publish a biannual transparency report outlining actions taken to enforce the acceptable use policy. The report must include the number of complaints received, who filed the complaint, what action was taken thereon, the number of coordinated campaigns identified, the number of instances where people appealed the decision to remove the user’s content, and the decision taken by the platform on the appeal.
Timeline for reviewing complaints: Platforms that receive notice of illegal content or illegal activity on the social media platform should make a good faith effort to evaluate the legality of the content or activity within 48 hours of receiving the notice, excluding hours during a Saturday or Sunday.
Why are tech companies against the law?
NetChoice and CCIA argue that the Texas law is an unconstitutional law that compels government-preferred speech from select private entities. The brief filed by the trade organisations in the Supreme Court also complained that the law is “an unprecedented assault on the editorial discretion of private websites (like Facebook.com, Instagram.com, Pinterest.com, Twitter.com, Vimeo.com, and YouTube.com) that would fundamentally transform their business models and services.”
“To take a particularly stark example of the First Amendment problems posed by HB 20, consider the issue of racist speech. A social media company clearly should have the right to block or remove racist and other hateful posts. That right shouldn’t be undermined by handing the authors of those posts legal support allowing them to claim that their posts merely express a “viewpoint” and thus must under Texas law be allowed on the platform.” – John Villasenor, Brookings Institute
In 2021, the trade groups fought a similar law in Florida and had that blocked by a US District Court judge:
Last year, both Texas and Florida embarked on an unprecedented effort to override the editorial discretion of social media platforms and to compel them to disseminate a plethora of speech the platforms deem objectionable and antithetical to the speech they want to present to users (and advertisers). Both laws are an undisguised effort to level the speech playing field and control “Big Tech.” To that end, both laws override editorial discretion and compel speech—imposing their burdens only on selected speakers and carving out favored content. In short, the laws defy established First Amendment doctrine by taking virtually every action forbidden to state actors by the First Amendment.
When Judge Robert Pitman of the US District Court for the Western District of Texas granted a preliminary injunction to the law last December, he noted that “HB 20’s prohibitions on ‘censorship’ and constraints on how social media platforms disseminate content violate the First Amendment” and places an “unduly burdensome disclosure requirements on social media platforms.”
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