In a loss for Big Tech and its ad base, a federal appeals court has concluded that corporations do not have a “freewheeling First Amendment right to censor what people say,” and so has paved the way for a Texas law (HB 20) that restricts how social media giants moderate their content.
The law, which passed a Republican-controlled legislature last year, “prohibits an interactive computer service from censoring 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.” It also requires large social media platforms like Facebook and Twitter to disclose how they manage content, to publish an acceptable-use policy that users can find telling them what content is acceptable, to publish quarterly transparency reports and to have a complaint system in place.
In May, a three-judge panel of the 5th U.S. Circuit Court of Appeals, in a split 2-1 decision, reversed a lower court opinion and lifted a preliminary injunction against the law. On appeal from the Computer & Communications Industry Association and NetChoice, the Supreme Court reinstated the stay until the 5th Circuit rendered its decision on the underlying case, which it did Friday (Sept. 16).
CCIA and NetChoice argue the law is unconstitutional on its face and that the law puts all speech, including hate speech, on the same footing, but the Fifth Circuit clearly disagreed.
”In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment,” the court ruled. That amendment, of course, protects every person’s right to freedom of speech. But the platforms argue that “buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech," the three-judge panel concluded.
The CCIA was not pleased.
“We strongly disagree with the court’s decision,” CCIA president Matt Schruers said. "Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk. ‘God Bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same.”
Computer companies have likened the law to the FCC’s Fairness Doctrine, which once imposed an affirmative obligation on broadcasters to present issues of public importance and to seek out opposing viewpoints on those issues. The demise of the doctrine in the 1980s is credited with giving rise to the conservative talk-radio boom.
Internet advertisers and others filed a friend of the court brief at the Supreme Court in support of NetChoice and the CCIA, agreeing that the law say will irreparably damage online platforms as advertising vehicles.
They said HB 20 “will result in the wholesale lifting of content moderation. The resulting deluge of hate speech, graphic images and video, and vile content of all forms is not what users want,” and will “irredeemably harm those platforms’ goodwill and reputations.”
Republican commissioner Brendan Carr, who is a big critic of Big Tech, applauded the decision.
“The Fifth Circuit has rightly rejected Big Tech’s claim to muzzle other peoples’ political speech without any check, turning aside what the court described a,'" he said. "This is a significant, pro-speech win that will promote a diversity of viewpoints."■
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.