Texas Court Gets It Right: Dumps Texas's Social Media Moderation Law As Clearly Unconstitutional
Back in June we reported on how Florida's social media moderation bill was tossed out as unconstitutional in a Florida court. The ruling itself was a little bit weird, but an easy call on 1st Amendment grounds. It was perhaps not surprising, but still stupid, to see Texas immediately step up and propose its own version of such a bill, which was signed in September. We again predicted that a court would quickly toss it out as unconstitutional.
And that's exactly what has happened.
There was some whispering and concerns that Texas' law was craftier than the Florida law, and parts of it might survive, but, nope. And this ruling is actually more thorough, and more clear than the slightly jumbled Florida ruling. It's chock full of good quotes. The only thing that sucks about this ruling, honestly, is that Texas is definitely going to appeal it to the 5th Circuit court of appeals and the 5th Circuit is the craziest of Circuits and seems, by far, the most likely to ignore the basic 1st Amendment concepts in favor of some weird Trumpist political grandstanding.
However, for this brief shining moment, let's celebrate a good, clean ruling that vindicates all the points many of us have been making about just how batshit crazy the Texas law was, and how it was so blatantly an infringement on the 1st Amendment rights of websites. There are a bunch of pages wasted on proving that the trade groups who brought the lawsuit have standing, which aren't worth rehashing here beyond saying that, yes, trade groups for internet companies have the standing to challenge this law.
From there, the ruling gets down to the heart of the matter, and it's pretty straight forward. Content moderation is the same thing as editorial discretion and that's clearly protected by the 1st Amendment.
Social Media Platforms Exercise Editorial Discretion Protected by the FirstAmendment
Judge Robert Pitman cites all the key cases here -- Reno v. ACLU (which tossed out all of the CDA -- minus Section 230 -- as unconstitutional, but also clearly established that the 1st Amendment applies to the internet), Sorrell v. IMS Health (establishing that the dissemination of information is speech) and, perhaps most importantly, Manhattan Cmty. Access v. Halleck, the Justice Brett Kavanaugh-authored ruling we've highlighted many times for making it quite clear that private internet companies are free to moderate however they see fit. It also cites the key case that was instrumental to the ruling in Florida: Miami Herald v. Tornillo, which made clear the 1st Amendment protections for editorial discretion:
Social media platforms have a First Amendment right to moderate content disseminated ontheir platforms. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1932 (2019) (recognizingthat certain private entities[] have rights to exercise editorial control over speech and speakers ontheir properties or platforms"). Three Supreme Court cases provide guidance. First, in Tornillo, theCourt struck down a Florida statute that required newspapers to print a candidate's reply if anewspaper assailed her character or official record, a right of reply" statute. 418 U.S. at 243. In1974, when the opinion was released, the Court noted there had been a communicationsrevolution" including that [n]ewspapers have become big business . . . [with] [c]hains ofnewspapers, national newspapers, national wire and news services, and one-newspaper towns [being]the dominant features of a press that has become noncompetitive and enormously powerful andinfluential in its capacity to manipulate popular opinion and change the course of events." Id. at248-49. Those concerns echo today with social media platforms and Big Tech" all the whilenewspapers are further consolidating and, often, dying out. Back to 1974, when newspapers wereviewed with monopolistic suspicion, the Supreme Court concluded that newspapers exercisededitorial control and judgment" by selecting the material to go into a newspaper," deciding thelimitations on the size and content of the paper," and deciding how to treat public issues andpublic officials-whether fair or unfair." Id. at 258. It has yet to be demonstrated howgovernmental regulation of this crucial process can be exercised consistent with First Amendmentguarantees of a free press as they have evolved to this time."
There's also a fun bit for all the very silly people who keep insisting that social media websites are "common carriers" which could subject them to certain restrictions. The court says "nope," highlights how very different they are from common carriers, and moves on.
This Court starts from the premise that social media platforms are not common carriers.Equal access obligations . . . have long been imposed on telephone companies, railroads, and postalservices, without raising any First Amendment issue." United States Telecom Ass'n v. Fed. Commc'nsComm'n, 825 F.3d 674, 740 (D.C. Cir. 2016). Little First Amendment concern exists becausecommon carriers merely facilitate the transmission of speech of others." Id. at 741. In United StatesTelecom, the Court added broadband providers to its list of common carriers. Id. Unlike broadbandproviders and telephone companies, social media platforms are not engaged in indiscriminate,neutral transmission of any and all users' speech." Id. at 742. User-generated content on social mediaplatforms is screened and sometimes moderated or curated. The State balks that the screening isdone by an algorithm, not a person, but whatever the method, social media platforms are not mereconduits. According to the State, our inquiry could end here, with Plaintiffs not needing to provemore to show they engage in protected editorial discretion. During the hearing, the Court asked theState, [T]o what extent does a finding that these entities are common carriers, to what extent is thatimportant from your perspective in the bill's ability to survive a First Amendment challenge?" (SeeMinute Entry, Dkt. 47). Counsel for the State responded, [T]he common carriage doctrine isessential to the First Amendment challenge. It's why it's the threshold issue that we've briefed . . . .It dictates the rest of this suit in terms of the First Amendment inquiry." (Id.). As appealing as theState's invitation is to stop the analysis here, the Court continues in order to make a determinationabout whether social media platforms exercise editorial discretion or occupy a purgatory betweencommon carrier and editor.
There's also a short footnote totally dismissing the fact that the Texas bill, HB20, tries to just outright declare social media sites as common carriers. That's not how any of this works.
HB 20's pronouncement that social media platforms are common carriers... does not impact this Court's legal analysis.
The judge briefly notes that social media is obviously different in many ways than newspapers, and that AI-based moderation is certainly a technological differentiator, but then brings it back around to basic principles: it's still all editorial discretion.
This Court is convinced that social media platforms, or at least those covered by HB 20,curate both users and content to convey a message about the type of community the platform seeksto foster and, as such, exercise editorial discretion over their platform's content.
In fact, Texas legislators' and the governor's own hubris helped sink this bill by admitting in the bill itself and in quotes about the bill, how this is all about editorial discretion.
Indeed, the text ofHB 20 itself points to social media platforms doing more than transmitting communication. InSection 2, HB 20 recognizes that social media platforms (1) curate[] and target[] content to users,(2) place[] and promote[] content, services, and products, including its own content, services, andproducts, (3) moderate[] content, and (4) use[] search, ranking, or other algorithms or proceduresthat determine results on the platform." Tex. Bus. & Com. Code 120.051(a)(1)-(4). Finally, theState's own basis for enacting HB 20 acknowledges that social media platforms exercise editorialdiscretion. [T]here is a dangerous movement by social media companies to silence conservativeviewpoints and ideas." Governor Abbott Signs Law Protecting Texans from Wrongful Social Media Censorship,OFFICE OF THE TEX. GOVERNOR (Sept. 9, 2021), https://gov.texas.gov/news/post/governorabbott-signs-law-protecting-texans-from-wrongful-social-media-censorship. Texans must be able tospeak without being censored by West Coast oligarchs." Bryan Hughes (@SenBryanHughes),TWITTER (Aug. 9, 2021, 4:34 PM), https://twitter.com/SenBryanHughes/status/1424846466183487492 Just like the Florida law, a constant theme of [Texas] legislators, as well asthe Governor . . . , was that the [platforms'] decisions on what to leave in or take out and how topresent the surviving material are ideologically biased and need to be reined in." NetChoice, 2021 WL2690876, at *7. Without editorial discretion, social media platforms could not skew their platformsideologically, as the State accuses of them of doing. Taking it all together, case law, HB 20's text, andthe Governor and state legislators' own statements all acknowledge that social media platformsexercise some form of editorial discretion, whether or not the State agrees with how that discretionis exercised.
And then, once it's clear that moderating is the same as editorial discretion, it's easy to see how the bill's restrictions are a clear 1st Amendment problem. It does this, first, by highlighting the impossible choices the bill puts in front of social media companies, using the example of content about Nazis.
The State claims that social media platformscould prohibit content categories such as terrorist speech,' pornography,' spam,' or racism'" toprevent those content categories from flooding their platforms. (Resp. Prelim. Inj. Mot., Dkt. 39, at21). During the hearing, the State explained that a social media platform can't discriminate againstusers who post Nazi speech . . . and [not] discriminate against users who post speech about the antiwhiteor something like that." (See Minute Entry, Dkt. 47). Plaintiffs point out the fallacy in theState's assertion with an example: a video of Adolf Hitler making a speech, in one context theviewpoint is promoting Nazism, and a platform should be able to moderate that content, and inanother context the viewpoint is pointing out the atrocities of the Holocaust, and a platform shouldbe able to disseminate that content. (See id.). HB 20 seems to place social media platforms in theuntenable position of choosing, for example, to promote Nazism against its wishes or ban Nazismas a content category. (Prelim. Inj. Mot., Dkt. 12, at 29). As YouTube put it, YouTube will face animpossible choice between (1) risking liability by moderating content identified to violate itsstandards or (2) subjecting YouTube's community to harm by allowing violative content to remainon the site."
And thus:
HB 20's prohibitions on censorship" and constraints on how social media platformsdisseminate content violate the First Amendment.
Why?
HB 20 compels social media platforms tosignificantly alter and distort their products. Moreover, the targets of the statutes at issue are theeditorial judgments themselves" and the announced purpose of balancing the discussion-reiningin the ideology of the large social-media providers-is precisely the kind of state action heldunconstitutional in Tornillo, Hurley, and PG&E." Id. HB 20 also impermissibly burdens social mediaplatforms' own speech. Id. at *9 ([T]he statutes compel the platforms to change their own speech inother respects, including, for example, by dictating how the platforms may arrange speech on theirsites."). For example, if a platform appends its own speech to label a post as misinformation, theplatform may be discriminating against that user's viewpoint by adding its own disclaimer. HB 20restricts social media platforms' First Amendment right to engage in expression when they disagreewith or object to content.
At this point, the court dismisses, in a footnote, the two cases that very silly people always bring up: Pruneyard and Rumsfeld. Pruneyard is the very unique shopping mall case, which has very limited reach, and Rumsfeld is about a university allowing or not allowing military recruiters on campus. Supporters of efforts to force websites to host speech point to both cases as some sort of "proof" that it's okay to compel speech, but both are very narrowly focused, and anyone relying on either is doing a bad faith "well, in these cases you could compel speech, so in this case obviously you can as well." But the judge isn't having any of it.
The Court notes that two other Supreme Court cases address this topic, but neither applies here. PruneYardShopping Center v. Robins is distinguishable from the facts of this case. 447 U.S. 74 (1980). In PruneYard, theSupreme Court upheld a California law that required a shopping mall to host people collecting petitionsignatures, concluding there was no intrusion into the function of editors" since the shopping mall'soperation of its business lacked an editorial function. Id. at 88. Critically, the shopping mall did not engage inexpression and the [mall] owner did not even allege that he objected to the content of the [speech]; nor wasthe access right content based." PG&E, 475 U.S. at 12. Similarly, Rumsfeld v. Forum for Academic& Institutional Rights, Inc. has no bearing on this Court's holding because it did not involve governmentrestrictions on editorial functions. 547 U.S. 47 (2006). The challenged law required schools that allowedemployment recruiters on campus to also allow military employment recruiters on campus-a restriction onconduct, not speech." Id. at 62, 65. As the Supreme Court explained, accommodating the military's messagedoes not affect the law schools' speech, because the schools are not speaking when the host interviews andrecruiting receptions."
Even more importantly, the court rejects the transparency requirements in HB20. Again, this part was one that some people thought might slide through and be left in place. We've discussed, multiple times, how transparency on these issues is important, but that mandated transparency actually creates serious problems. The court, thankfully, agrees.
To pass constitutional muster, disclosure requirements like these must require only factualand noncontroversial information" and cannot be unjustified or unduly burdensome." NIFLA, 138S. Ct. at 2372. Section 2's disclosure and operational provisions are inordinately burdensome giventhe unfathomably large numbers of posts on these sites and apps. For example, in three months in2021, Facebook removed 8.8 million pieces of bullying and harassment content," 9.8 million piecesof organized hate content," and 25.2 million pieces of hate speech content." (CCIA Decl., Dkt.12-1, at 15). During the last three months of 2020, YouTube removed just over 2 million channelsand over 9 million videos because they violated its policies. (Id. at 16). While some of those removalsare subject to an existing appeals process, many removals are not. For example, in a three-monthperiodin 2021, YouTube removed 1.16 billion comments. (YouTube Decl., Dkt. 12-3, at 23-24).Those 1.16 billion removals were not appealable, but, under HB 20, they would have to be. (Id.).Over the span of six months in 2018, Facebook, Google, and Twitter took action on over 5 billionaccounts or user submissions-including 3 billion cases of spam, 57 million cases of pornography,17 million cases of content regarding child safety, and 12 million cases of extremism, hate speech,and terrorist speech. (NetChoice Decl., Dkt. 12-2, at 8). During the State's deposition of NeilChristopher Potts (Potts"), who is Facebook's Vice President of Trust and Safety Policy, Pottsstated that it would be impossible" for Facebook to comply with anything by December 1, [2021].. . [W]e would not be able to change systems in that nature. . . . I don't see a way that we wouldactually be able to go forward with compliance in a meaningful way." (Potts Depo., Dkt. 39-2, at 2,46). Plaintiffs also express a concern that revealing algorithms or procedures that determine resultson the platform" may reveal trade secrets or confidential and competitively-sensitive information.(Id. at 34) (quoting Tex. Bus. & Com. Code 120.051(a)(4)).
The Section 2 requirements burden First Amendment expression by forc[ing] elements ofcivil society to speak when they otherwise would have refrained." Washington Post v. McManus, 944F.3d 506, 514 (4th Cir. 2019). It is the presence of compulsion from the state itself thatcompromises the First Amendment." Id. at 515. The provisions also impose unduly burdensomedisclosure requirements on social media platforms that will chill their protected speech." NIFLA,138 S. Ct. at 2378. The consequences of noncompliance also chill the social media platforms' speechand application of their content moderation policies and user agreements. Noncompliance cansubject social media platforms to serious consequences. The Texas Attorney General may seekinjunctive relief and collect attorney's fees and reasonable investigative costs" if successful inobtaining injunctive relief. Id. 120.151.
I'll just note that we had just mentioned that Washington Post v. McManus case earlier this week in calling out the Washington Post's hypocrisy in calling for mandatory disclosure rules for internet companies...
And Judge Pitman isn't done yet with the constitutional problems of HB20.
HB 20 additionally suffers from constitutional defects because it discriminates based oncontent and speaker. First, HB 20 excludes two types of content from its prohibition on contentmoderation and permits social media platforms to moderate content: (1) that is the subject of areferral or request from an organization with the purpose of preventing the sexual exploitation ofchildren and protecting survivors of sexual abuse from ongoing harassment," and (2) that directlyincites criminal activity or consists of specific threats of violence targeted against a person or groupbecause of their race, color, disability, religion, national origin or ancestry, age, sex, or status as apeace officer or judge." Tex. Civ. Prac. & Rem. Code 143A.006(a)(2)-(3). When considering a cityordinance that applied to fighting words' that . . . provoke violence[] on the basis of race, color,creed, religion[,] or gender,"' the Supreme Court noted that those who wish to use fighting words'in connection with other ideas-to express hostility, for example, on the basis of political affiliation,union membership, or []sexuality-are not covered." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377,391 (1992). As Plaintiffs argue, the State has no legitimate reason to allow the platforms to enforcetheir policies over threats based only on . . . favored criteria but not" other criteria like sexualorientation, military service, or union membership. (Prelim. Inj. Mot., Dkt. 12, at 35-36); see id.
There's also some good language in here for those who keep insisting that setting (often arbitrary) size barriers or carveouts on these laws is perfectly fine. Not so if they lead to discriminatory impact on venues for speech:
HB 20 applies only to social media platforms of a certain size: platforms with 50 millionmonthly active users in the United States. Tex. Bus. & Com. Code 120.002(b). HB 20 excludessocial media platforms such as Parler and sports and news websites. (See Prelim. Inj. Mot., Dkt. 12,at 17). During the regular legislative session, a state senator unsuccessfully proposed lowering thethreshold to 25 million monthly users in an effort to include sites like Parler and Gab, which arepopular among conservatives." Shawn Mulcahy, Texas Senate approves bill to stop social media companiesfrom banning Texans for political views, TEX. TRIBUNE (Mar. 30, 2021), https://www.texastribune.org/2021/03/30/texas-social-media-censorship/. [D]iscrimination between speakers isoften a tell for content discrimination." NetChoice, 2021 WL 2690876, at *10. The discriminationbetween speakers has special significance in the context of media because [r]egulations thatdiscriminate among media, or among different speakers within a single medium, often presentserious First Amendment concerns." Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 659 (1994). Therecord in this case confirms that the Legislature intended to target large social media platformsperceived as being biased against conservative views and the State's disagreement with the socialmedia platforms' editorial discretion over their platforms. The evidence thus suggests that the Statediscriminated between social media platforms (or speakers) for reasons that do not stand up toscrutiny.
And, of course, everyone's favorite: HB 20 is unconstitutionally vague.
First, Plaintiffs take issue with HB 20's definition for censor:" block, ban, remove,deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwisediscriminate against expression." Tex. Civ. Prac. & Rem. Code 143A.001(1). Plaintiffs argue thatrequiring social media platforms to require equal access or visibility to" content is hopelesslyindeterminate." (Prelim. Inj. Mot., Dkt. 12, at 37) (quoting id.). The Court agrees. A social mediaplatform is not static snapshot in time like a hard copy newspaper. It strikes the Court as nearlyimpossible for a social media platform-that has at least 50 million users-to determine whetherany single piece of content has equal access or visibility" versus another piece of content given thehuge numbers of users and content. Moreover, this requirement could prohibit[] a social mediaplatform from" displaying content in the proper feeds"
There are some other drafting oddities that the Judge calls out including this one:
HB 20 empowers the Texas Attorney General to seek an injunction not just againstviolations of the statute but also potential violations." Tex. Civ. Prac. & Rem. Code 143A.008.Unlike other statutes that specify that the potential violation must be imminent, HB 20 includes nosuch qualification. See, e.g., Tex. Occ. Code 1101.752(a) (authorizing the attorney general to seekinjunctive relief to abate a potential violation if the commission determines that a person hasviolated or is about to violate this chapter"). Subjecting social media platforms to suit for potentialviolations, without a qualification, reaches almost all content moderation decisions platforms mightmake, further chilling their First Amendment rights.
As in the Florida case, the court here notes that even if there were some reason under which the law should be judged under intermediate, rather than strict, scrutiny, it would still fail.
HB 20 imposes content-based, viewpoint-based, and speaker-based restrictions that triggerstrict scrutiny. Strict scrutiny is satisfied only if a state has adopted the least restrictive means ofachieving a compelling state interest."' Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2383,210 L. Ed. 2d 716 (2021) (quoting McCullen v. Coakley, 573 U.S. 464, 478 (2014)). Even under the lessrigorous intermediate scrutiny, the State must prove that HB 20 is narrowly tailed to serve asignificant government interest.'" Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (quotingMcCullen, 573 U.S. at 477). The proclaimed government interests here fall short under bothstandards.
It's not even a difficult call. It's the kind of "duh" explanation that made it easy for us to say upfront that this law was so obviously unconstitutional:
The State's first interest fails on several accounts. First, social mediaplatforms are privately owned platforms, not public forums. Second, this Court has found that thecovered social media platforms are not common carriers. Even if they were, the State provides noconvincing support for recognizing a governmental interest in the free and unobstructed use ofcommon carriers' information conduits. Third, the Supreme Court rejected an identical governmentinterest in Tornillo. In Tornillo, Florida argued that government has an obligation to ensure that awide variety of views reach the public." Tornillo, 418 U.S. at 247-48. After detailing the problemsrelated to government-enforced access," the Court held that the state could not commandeer privatecompanies to facilitate that access, even in the name of reducing the abuses of bias andmanipulative reportage [that] are . . . said to be the result of the vast accumulations of unreviewablepower in the modern media empires." Id. at 250, 254. The State's second interest-preventingdiscrimination" by social media platforms-has been rejected by the Supreme Court. Even given astate's general interest in anti-discrimination laws, forbidding acts of discrimination" is a decidedlyfatal objective" for the First Amendment's free speech commands."...
And, the court practically laughs out loud at the idea that HB 20 was "narrowly tailored."
Even if the State's purported interests were compelling and significant, HB 20 is notnarrowly tailored. Sections 2 and 7 contain broad provisions with far-reaching, seriousconsequences. When reviewing the similar statute passed in Florida, the Northern District of Floridafound that that statute was not narrowly tailored like prior First Amendment restrictions."NetChoice, 2021 WL 2690876, at *11 (citing Reno, 521 U.S. at 882; Sable Commc'n of Cal., Inc. v. FCC,492 U.S. 115, 131 (1989)). Rather, the court colorfully described it as an instance of burning thehouse to roast a pig." Id. This Court could not do better in describing HB 20.
End result: injunction granted, the law does not go into effect today as originally planned. Texas will undoubtedly now appeal, and we can only hope the 5th Circuit doesn't muck things up, as it's been known to do. Depending on how this plays out, as well as how the 11th Circuit handles the Florida case, it's possible this could hit the Supreme Court down the road. Hopefully, both the 11th and the 5th actually take heed of Justice Kavanaugh's words in the Halleck case, and choose to uphold both district court rulings -- and we can get past this silly Trump-inspired moral panic attack on the 1st Amendment rights of social media platforms -- the very same rights that enable them to create spaces for us to speak and share our own ideas.