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'Really Unclear'

5th Circuit Decision on Texas HB 20 Seen Likely to Go to SCOTUS

Law professors and advocacy groups consider Friday’s 2-1 5th U.S. Circuit Court of Appeals decision upholding Texas social media law HB 20 in NetChoice v. Ken Paxton an outlier with uncertain effects on social media platforms, but they widely expect the matter to go to the Supreme Court. “This is far from over; there are a lot of hurdles between here and this law taking effect,” said Tech Freedom Internet Policy Counsel Corbin Barthold Monday during a livestreamed panel on the decision. “It is really unclear how platforms could continue to function,” said Blake Reid, director-University of Colorado Samuelson-Glushko Technology Law & Policy Clinic. Plaintiff NetChoice declined to comment on whether it will appeal the case.

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SCOTUS is expected to hear the case because the 5th Circuit decision creates a circuit split with an earlier 11th Circuit U.S. Court of Appeals decision striking down Florida law similar to HB 20. Several justices also indicated an interest in the matter in an earlier SCOTUS decision restoring an injunction in the case. A SCOTUS decision on the case could create more clarity about controversial areas such as Section 230 of the Communications Act, said Boston College Law School professor Daniel Lyons, in an interview. A SCOTUS decision could answer questions about whether the First Amendment protects social media editorial decisions or its editorial discretion at all, said Reid. “We have a conflict; we need the Supreme Court to provide some clarity,” said Free State Foundation President Randolph May in an interview. Lyons and others said it's possible Netchoice will seek an en banc review before a SCOTUS appeal, but the case is still expected to eventually go to the high court.

The 5th Circuit ruling reverses a lower court decision against HB 20, which prohibits social media platforms from “censoring speech based on the viewpoint of the speaker,” wrote Circuit Judge Andrew Oldham, writing for the majority. “The Platforms cannot invoke ‘editorial discretion’ as if uttering some sort of First Amendment talisman to protect their censorship.” A dissent from Judge Leslie Southwick disagreed. “When the social media platforms who are in the business of speech make decisions about which speech is permitted, featured, promoted, boosted, monetized, and more, they are engaging in activity to which First Amendment protection attaches,” said the dissent.

Tech advocacy groups and law professors characterized the decision as an outlier. The 5th Circuit “has ignored decades of First Amendment and Supreme Court precedent -- and acted contrary to recent Supreme Court orders -- to reach a seemingly politically motivated decision,” said Public Knowledge Legal Director John Bergmayer in a release. The decision is “badly reasoned,” tweeted Tech Freedom CEO Berin Szoka. FCC Commissioner Brendan Carr, who has been critical of tech companies, praised the decision in a statement Monday. The Fifth Circuit “has rightly rejected Big Tech’s claim to muzzle other peoples’ political speech without any check,” said Carr. “This is a significant, pro-speech win that will promote a diversity of viewpoints.” Social media companies have vast resources, and are able to handle any additional burdens created by HB20, said May.

These massive corporate entities cannot continue to go unchecked as they silence the voices of millions of Americans,” said Texas Attorney General Ken Paxton (R) in a news release. “HB 20 was designed to protect every Texan wanting to fully express his or her First Amendment rights, and the court made the right decision in upholding the law.” We are disappointed that the Fifth Circuit’s split decision undermines First Amendment protections and creates a circuit split with the unanimous decision of the Eleventh Circuit,” said Carl Szabo, NetChoice vice president-general counsel, in a release. “We remain convinced that when the U.S. Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms, and apps.

Public Knowledge said the case could have consequences for other media. “The implication of this panel’s opinion is that television stations and newspapers can be ordered by the state to carry political propaganda, or that it might be illegal for your email provider to filter spam,” said Bergmayer. This is legal precedent for state and federal governments to apply antidiscrimination requirements to tech companies carrying the speech of others, Carr said. “This is a context that is wholly distinct from the inapt set of newspaper cases that Big Tech companies have put forward in an effort to block antidiscrimination laws like Texas’ HB 20.”

It’s unclear how Texas’ law would be implemented and how platforms could react, said Reid. Social media companies could block their content from appearing in Texas, though the law contains language designed to prevent that. They could also cease moderating their content there, though that could create other legal complications, he said. “Nobody knows what this means,” said Reid.