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Texas law prohibiting social media companies from banning users over their viewpoints reinstated by appeals court

The court did not evaluate the law on its constitutionality but will allow it to go back into effect while a legal case plays out. Texas lawmakers passed the law, saying social media platforms have an anti-conservative bias.
Texas Gov. Greg Abbott is raising the idea of Texas mounting a renewed challenge over a 1982...
Texas Gov. Greg Abbott is raising the idea of Texas mounting a renewed challenge over a 1982 decision known as Plyler v. Doe. That 5-4 decision struck down a Texas law that sought to deny enrollment to any student not “legally admitted” into the country.(Source: Gage Skidmore/Flickr)
Published: May. 11, 2022 at 9:57 PM CDT
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Provided by The Texas Tribune

A federal appeals court on Wednesday reinstated a Republican-backed Texas law that prohibits large social media companies from banning users over their political viewpoints.

The decision hands a win to Republicans who have long criticized social media platforms such as Twitter for what they call anti-conservative bias — disapproval that was amplified when President Donald Trump was banned from Twitter for violating the platform’s rules on inciting violence during the Jan. 6, 2021, riot at the U.S. Capitol.

The order did not evaluate the law on its constitutionality but instead allows the law to go back into effect while the case proceeds in district court, according to a statement from one of the plaintiff groups. The ruling came from a three-judge panel on the 5th U.S. Circuit Court of Appeals — which is often considered the most conservative appeals court in the country — and was not accompanied by a written opinion explaining the decision at the time of publication.

Two large industry trade groups that represent companies such as Google and Twitter sued to block the law last fall.

In December, a federal district court judge ruled in favor of the groups and blocked the law while the lawsuit continues, reasoning that the First Amendment protects a company’s right to moderate content and called parts of the law “prohibitively vague.” As a result, Texas Attorney General Ken Paxton appealed the district judge’s decision to the circuit court.

Passed during a special session last year, House Bill 20 also requires social media platforms with more than 50 million monthly users to publicly disclose information about content removal and account suspensions.

“HB 20 is an assault on the First Amendment, and it’s constitutionally rotten from top to bottom,” Chris Marchese, counsel for the NetChoice industry trade group, tweeted after the ruling. “So of course we’re going to appeal today’s unprecedented, unexplained, and unfortunate order by a split 2-1 panel.”

The decision comes as businessman Elon Musk is poised to buy Twitter and possibly remake the company’s moderation policies — a move that conservatives have cheered. Musk recently said he would reinstate Trump’s account if the acquisition is completed.

“Sadly, we have a handful of people in America today who want to control the town square, who want to control social media and want to enforce silence,” state Sen. Bryan Hughes, R-Mineola, said in support of the bill last year. “If you have a viewpoint different from theirs, they want to shut you up. That’s not the American way, and that is not the Texas way.”

The law does not provide any specific civil penalties for breaking the law, besides allowing users to sue to recuperate their court costs from the company found in violation. The law also empowers the attorney general to pursue violations.

The Texas attorney general’s office said in a tweet late Wednesday that the appeals court made the right decision and said it would continue defending the Texas law.

Disclosure: Google has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.