The 5th Circuit Reinstates Texas’ Obviously Unconstitutional Social Media Law Effective Immediately

Content Moderation

from the what-a-clusterfuck dept

Florida and Texas both passed blatantly unconstitutional laws limiting the ability of social media websites to moderate. Lawsuits were filed challenging both laws. In both cases, the district courts correctly blocked the laws from going into effect, noting that it was obviously a 1st Amendment violation to tell websites how they could and could not moderate. Both states appealed. A few weeks back there was a hearing in the 11th Circuit over the Florida law, where it became quite clear that the judges seemed to grasp the issues, and had lots of really tough questions for Florida’s lawyers. However, they have not issued an actual ruling yet.

On Monday of this week, the notoriously bad about everything 5th Circuit heard Texas’s appeal on its law, and the hearing went sideways from the very beginning, with one of the judges even trying to argue that Twitter wasn’t a website. That was only the tip of the iceberg of misunderstanding the three judge panel presented, confusing a number of issues around free speech, common carriers, private property and more. Based on the hearing, it seemed likely that the court was going to make a huge mess of things, but even then, it would be normal to take a few months to think about it, and maybe (hopefully?) reread the briefings. Also, standard practice would be to release a ruling where there would be a nominal period in which to file some sort of appeal. Instead, late Wednesday, the court just reinstated the law with no explanation at all.

An opinion is likely to follow at some point, but the whole setup of everything is bizarre and not very clear at all. The only bit of info provided is that the panel was not unanimous, suggesting that Judge Southwick, who seemed to have a better grasp of the matter than his two colleagues, probably went the other way.

So… what does this mean? Well, Texas is now a mess for any social media company. Operating in Texas and daring to do something as basic as stopping harassment and abuse on your platform now opens you up to significant litigation and potential fines. It strips editorial discretion, the right to cultivate your own community, and much much more that is fundamentally necessary to running a website with 3rd party content. I’ll have a second post later today exploring the many, many ways in which this law is effectively impossible to comply with.

I am positive that every decently sized social media company had to talk to its lawyers Wednesday evening and assess whether or not it makes sense to block access to everyone in Texas (even though some of the language in the bill suggests that it requires companies to operate in Texas). Others may decide to open the floodgates of hate, harassment, and abuse and say “well, this is what you required.” And it still won’t result in them not getting sued.

For what it’s worth, Trump’s own website, Truth Social, has moderation practices that clearly run afoul of this law, and he’s only protected from it to the extent that it still has less than 50 million monthly users.

It would be nice if the 11th Circuit came out with their ruling going the opposite way, and did so in a clear and reasoned fashion, setting up a circuit split that the Supreme Court could review. But that seems unlikely. I’ve been told that the judges on the 11th Circuit panel are famous for their excessively slow writing of opinions. The tech companies could seek an en banc review from the entire 5th Circuit, though much of the 5th Circuit is ridiculous and I’m not convinced it would help at all. There could be an attempt to appeal immediately to the Supreme Court’s shadow docket, but that’s also fundamentally an unknown arena right now.

So, in summary, Texas is fucked. Social media in Texas is now a risky proposition. And whether or not the companies continue to operate in Texas, the floodgates have been opened for ridiculous lawsuits. If you thought that Texas lawsuits over patent trolls created an entire industry unto itself, you haven’t seen anything yet.

Filed Under: 1st amendment, 5th circuit, common carrier, content moderation, discrimination, free speech, hb20, liability, social media, texas