By Cora Neas
AUSTIN (KXAN) — People who fall on all sides of the political spectrum are signaling concern over what implementing Texas’ social media law will look like practically. The 5th Circuit Court of Appeals lifted an injunction against Texas’ H.B. 20 on May 11, which means the law will now prevent social media companies from moderating user-generated content or banning users for speech that goes against the company’s terms of service.
H.B. 20 was passed by the Texas legislature and signed into law by Gov. Greg Abbott in September 2021.
This week’s change
On Sept. 22, 2021 NetChoice, a trade association promoting free speech and enterprise online, and the Computer and Communications Industry Association (CCIA) filed a complaint against Texas Attorney General Ken Paxton. The complaint requested an injunction to prevent enforcement of the new law.
Paxton appealed the district court’s injunction to the 5th Circuit Court of Appeals. After the appeals court lifted the injunction, CCIA and NetChoice submitted an emergency application to Supreme Court Justice Samuel Alito asking for immediate relief from H.B. 20.
According to a NetChoice press release, Alito may rule on the application unilaterally or bring it before the other eight justices.
Texas Attorney General Ken Paxton submitted a response to SCOTUS on Wednesday.
“[Texas] passed HB 20 to ensure that the platforms both forthrightly disclose their content-moderation practices and continue to serve the public without refusing to deal with potential customers due to their viewpoints,” Paxton response reads. “The platforms primarily challenge the ‘Hosting Rule,’ which prohibits the platforms from censoring a customer based on his viewpoint or location in Texas.”
The response also notes that social media companies can still choose to ban “entire categories of content” such as pornography or content by foreign governments. It also notes that illegal or inciting content is not protected by H.B. 20
Amicus briefs were also filed. More then 30 groups wrote to SCOTUS in support of the plaintiffs, and Florida Attorney General Ashley Moody filed a brief supporting Paxton. Eleven other states co-signed Florida’s amicus brief.
Reaction to law going into effect
The Chamber of Progress, one of the groups that filed a brief in support of CCIA and NetChoice, hosted a virtual press conference at noon Wednesday.
The speakers said they were concerned marginalized groups, such as the Jewish community and LGBTQIA+ people, may receive more threats, and worried about the spread of extremist speech. Adam Kovacevich, founder of the Chamber of Progress, connected the law to the Buffalo mass shooting.
“We’re having this discussion just days after a tragic act of domestic terrorism in Buffalo, New York, resulting in the deaths of 10 Black Americans after the perpetrator posted racist manifestos online and attempted to livestream the massacre through Twitch,” Kovacevich said. “I think what’s clear in the wake of this tragedy is that we must do everything in our power to stop white supremacist ideology from further radicalizing Americans. But that is in direct conflict with this law, which explicitly prevents social media platforms from taking down user content, even when it promotes racism or terrorism.”
Rep. Jon Rosenthal (D) debated the law in the Texas House of Representatives prior to its passage, and proposed two amendments that would have kept bans on Holocaust denial and terrorist groups’ speech on social media.
“I even said ‘if you vote this amendment down, you’re voting to support domestic terrorism, international terrorism and their recruitment efforts here in the U.S.,'” Rosenthal said. “They still pretty much voted on the amendment on party lines. So it’s — it’s very alarming what folks are willing to do in in to line up with their party instead of what’s just right.”
Both proposed amendments failed and did not become part of the final law.
Carlos Gutierrez, deputy director of LGBT Tech, an organization that advocates for the LGBTQ+ community online and in tech, also spoke at the virtual event. He noted that many people in the LGBTQ+ community are at risk of losing online community and facing increased harassment due to enforcement of HB20.
“A lot of youth and people who are figuring out their identity are going to social media sites before they even talk to their own families because it’s a place where they may feel protected and able to have a safe space,” Gutierrez said. “Without [content moderation], digital forums and apps can easily and quickly be overrun with homophobia, bullying, harassment and misinformation.”
Elizabeth Banker, Chamber of Progress’ general counsel, called the stay of the injunction unexpected and unusual.
“What the court is essentially invited to do is tell platforms that they have to put back these hateful messages and the people behind them proliferating those messages,” Banker said. “Individual states can’t moderate the internet — it is a vehicle of interstate commerce. Texas has reached far beyond its borders with this.”
Tom Giovanetti, president of the Institute for Policy Innovation (IPI), calls the law “overreach by government regulation.” IPI is a think tank that advocates for free market policy, individual liberty and limited government.
“Our view at the Institute is that markets are how companies are held accountable. If people are not happy with the job that a business is doing, they will stop patronizing that business,” Giovanetti said. “The people who own and run these platforms are interested in pleasing as many customers as possible, they’re not interested in alienating people and driving people away.”
Giovanetti pushed back against Paxton’s claims that social media represents a new “public square,” and instead advocated for the companies’ rights as private businesses.
Enforcement of HB20 will, in Giovanetti’s opinion, drive away users from social media sites as their user experience becomes a “Wild West” of inflammatory content.
“There’s members of the Texas legislature who would shout from the hilltops that they believe in free markets,” Giovanetti said, “But when you pass a bill like this, you’re proving that you don’t really believe in free markets, you believe in the power of government to force the result that you prefer.”
The Chamber of Progress and IPI both agree the bill will likely make its way to the Supreme Court and be struck down.
Until then, Texans should expect that their social media experience will change.