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Sat, 25 Sep 2021

Texas' Unconstitutional Social Media Censorship Bill Challenged In Court, Just As Texas Joins The Legal Fight For Florida's Unconstitutional Social Media Bill
Furnished content.

Texas and Florida. Florida and Texas. Two states with governors who have decided that culture warrioring and "owning the libs" is way more important than the Constitution they swore to protect and uphold. As you'll recall, last month Texas Governor Greg Abbott decided to use the internet services he hates to livestream his signing of the clearly unconstitutional HB20 that seeks to block social media sites from moderating how they see fit.As we had pointed out, Florida had beaten Texas to the punch on that and a court had already tossed out the bill as an unconstitutional infringement of 1st Amendment rights. Now a state that was looking to actually do things correctly would maybe see that and recognize that maybe it's not worth wasting millions of taxpayer dollars to do the exact same thing, but Texas went ahead.And, now, the same two organizations that sued to strike down Florida's law, NetChoice and CCIA, have similarly sued to strike down Texas' law.

At bottom,H.B. 20 imposes impermissible content- and viewpoint-based classifications to compel a selectfew platforms to publish speech and speakers that violate the platforms' policiesand to presentthat speech the same way the platforms present other speech that does not violate their policies.Furthermore, H.B. 20 prohibits the platforms from engaging in their own expression to label orcomment on the expression they are now compelled to disseminate. And in light of the statute'svague operating provisions, every single editorial and operational choice platforms make couldsubject those companies to myriad lawsuits.These restrictionsby striking at the heart of protected expression and editorialjudgmentwill prohibit platforms from taking action to protect themselves, their users,advertisers, and the public more generally from harmful and objectionable matter. At a minimum,H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate,for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, andmedical misinformation. In fact, legislators rejected amendments that would explicitly allowplatforms to exclude vaccine misinformation, terrorist content, and Holocaust denial.Additional H.B. 20 provisions will work to chill the exercise of platforms' FirstAmendment rights to exercise their own editorial discretion and to be free from state-compelledspeech. H.B. 20 will impose operational mandates and disclosure requirements designed toprescriptively manageand therefore interfere with and chillplatforms' exercise of editorialdiscretion. In a series of intrusive provisions, H.B. 20 requires social media platforms to publishhow they intend to exercise their discretion, document in excruciating detail how they exercisetheir editorial discretion over potentially billions of pieces of content, and operate inherentlyburdensome and unworkable individualized complaint mechanismsall of which together workto compel or otherwise challenge the platforms' countless daily uses of editorial discretion.
Notably, the lawsuit does not challenge the email filter provisions in the law, which effectively means that on December 2nd, if no one else tries to stop it, spam filters may be in violation of Texas' law. As Prof. Eric Goldman has noted, any spammer whose email is caught in a spam filter will then be able to sue the filter provider and seek statutory damages. Fun stuff!Meanwhile, also this week, just to show how totally committed Texas Attorney General Ken Paxton is to unconstitutional restrictions on the free exercise of editorial discretion, he also filed an amicus brief in the appeal of the Florida ruling. A bunch of other states (Alabama, Alaska, Arizona, Arkansas, Kentucky, Mississippi, Missouri, Montana, and South Carolina) all signed on, but this is a Texas product. Also, it's hot garbage. It insists that these bills don't regulate speech -- when they very, very clearly do.
But the district court's First Amendment analysis is riddledwith errors. It veered off course from the outset by concluding that S.B. 7072 regulates speech, when that law instead regulates conduct that is unprotected by the FirstAmendment: social media platforms' arbitrary application of their content moderation policies.
I mean, what? Of course, content moderation policies are protected by the 1st Amendment. It's basic editorial discretion.The entire amicus brief tries to claim that editorial discretion is "conduct" and not speech -- and that would upend basically all 1st Amendment precedent. And if Texas actually got its way with this, then that would enable the government to regulate who could appear on Fox News and other media organizations, claiming that those demands are "conduct, not speech."
Nothing in S.B. 7072's neutrality and disclosure provisions regulates the speechof Plaintiffs or the members of their trade associationsthey neither limit[] what[Plaintiffs or their members] may say nor require[] them to say anything. FAIR,547 U.S. at 60. Instead, at most these provisions regulate the conduct of Plaintiffs andtheir members: their arbitrary and blunderbuss content-moderation policies
This is... wrong. Requiring them not to moderate certain content (as the Florida bill does for political speech) is absolutely requiring them to associate with speech they may disagree with -- and such compelled association is a violation of the 1st Amendment. Did Ken Paxton actually graduate law school without learning this?Like Florida did in its case, the Texas Amicus brief relies heavily on Rumsfeld v. FAIR. The district court in Florida rightly pointed out that FAIR does not apply here and is easily distinguished:
The Florida statutes now at issue, unlike the state actionsin FAIR and PruneYard, explicitly forbid social media platforms from appendingtheir own statements to posts by some users. And the statutes compel the platformsto change their own speech in other respects, including, for example, by dictatinghow the platforms may arrange speech on their sites. This is a far greater burden onthe platforms' own speech than was involved in FAIR or PruneYard.
But, Texas insists otherwise -- and now we have to hope that the panel of Judges on the 11th Circuit recognizes the absolute garbage that is Texas' brief.

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