Texas lawyers told a federal court panel on Monday that Facebook, Twitter, and other social media platforms operate as a “modern-day public square” and might thus be obliged to host disagreeable material under a state statute that prohibits “censorship” of particular perspectives.
Lawyers for the state claimed to the 5th U.S. Circuit Court of Appeals that the platforms had evolved into common carriers, such as the telephone and telegraph, and thus can be controlled with specific restrictions.
In this case, those standards are outlined in House Bill 20, a state law prohibiting social media networks with more than 50 million monthly users from terminating an account due to “viewpoint discrimination.”
Last year, Texas passed HB 20 in response to several high-profile incidents of conservative accounts being taken from social media, most notably former President Donald Trump.
The law, among many other things, allows people who have been banned from Facebook, Twitter, or any other significant social media platform to sue if they believe they were banned because of their political views.
While the state is not entitled by law to sue on its own behalf, the Texas attorney general may sue on behalf of a banned user if the person is unable to hire another attorney.
NetChoice and the Computer and Communications Industry Association, two social media trade groups, argued the case in September, claiming it would lead to the spread of disinformation and hate speech on their platforms and violated their First Amendment rights.
In December, just before the law was supposed to take effect, a federal judge stopped it. The groups have also successfully sought to overturn a similar statute in Florida.
Texas later filed an appeal, claiming that HB 20 restricts not speech but conduct — what GOP lawmakers have referred to as the de-platforming of conservative views.
While those organizations maintained that they are entitled to the same constitutional protections as conventional media such as newspapers and radio corporations, Texas argued that they operate differently and do not have a right to editorial discretion, even when dealing with harmful content.
Allowing Texas to decide who is permitted on social media networks, according to Scott A. Keller, might have larger First Amendment implications.
