Texas Anti-Deplatforming Law Blocked by Federal Judge

Texas Anti-Deplatforming Law Blocked by Federal Judge
Photo: AFP Contributor, Getty Images

In a move just about anyone could have predicted, a federal judge has blocked Texas’ controversial social media law that would have restricted the way companies moderate content, claiming such efforts violate the First Amendment.

If passed, Texas’ H.B. 20 would have prohibited major social media platforms with more than 50 million users from removing users based on their political viewpoint. Additionally, Texas residents under the law could sue these companies if they thought they were wrongfully banned. The law had inelegantly tried to tiptoe around these pretty obvious First Amendment issues by categorising platforms as “common carriers,” something U.S. District Judge Robert Pitman called bullshit on in his ruling.

“First, social media platforms are privately owned platforms, not public forums,” Pitman wrote in the order. “Second, this Court has found that the covered social media platforms are not common carriers.”

The judge’s order granted a temporary injunction proposed by two trade groups representing major tech companies. Though the law’s main goal was to prevent companies from removing users based on their political viewpoints, the judge ruled this alleged “discrimination” is actually editorial discretion protected under the First Amendment.

“Without editorial discretion, social media platforms could not skew their platforms ideologically, as the State accuses of them of doing,” Pitman wrote.

If this all sounds familiar, that’s probably because the law, and a similar one attempted in Florida, are a continuation of the political right’s reaction to the banning of former President Donald Trump from major internet platforms two weeks before the end of his term. Texas Governor, and renowned Trump sycophant, Greg Abbott signed the bill into law on September 9, claiming in a press conference at the time that Texas was, “taking a stand against big tech political censorship.” Abbott added, “We’re not going to allow it in the Lone Star State.”

The law immediately faced pushback from Texas residents, digital rights activists, and major players in the tech industry. Back in September, the two major trade groups representing heavyweights like Facebook, Youtube, and Twitter, co-filed their lawsuit saying the new law would hamstring platforms’ ability to remove harmful content like hate speech or misinformation. That limitation, in turn, would represent a violation of the companies’ First Amendment Rights.

“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, and medical misinformation,” the lawsuit read. The suit also argued H.B. 20 ran afoul of Section 230 of the Communications Decency Act which grants platforms liability protection over most users generated content and provides them the freedom to broadly moderate their sites as they see fit.

The judge’s ruling comes on the heels of a similar ruling against Florida’s social media law passed in May. In that case, the Ron DeSantis approved law would attempt to fine social media companies $US250,000 ($352,325) per day for banning statewide political candidates. The judge in that case, U.S. District Judge Robert Hinkle, said Florida’s law was far too broad in scope and amounted to, “burning the house to roast a pig. ” In general, Hinkle ruled that “balancing the exchange of ideas among private speakers” didn’t amount to a legitimate government interest.

This week’s court ruling, like that of Florida’s, was bound to happen. Whether or not these two failed suits spell the end of hail mary right-wing tech laws remains more uncertain. Allegations of liberal bias in tech and conservative censorship online remain red hot issues for Republican voters.

Last year, around 90% of Republicans and Republican-leaning independents told Pew Research that it’s at least somewhat likely social media companies censored viewpoints the platforms find objectionable, a figure 10% higher than it was two years prior. Meanwhile, 69% of those Republicans and Republican learners said they thought social media companies support the views of liberals over conservatives. This is all, of course, despite the fact that Big Tech is about as “liberal” as a healthy milkshake.