Facebook Practices 'Viewpoint Discrimination,' Alleges HB 20 Complaint

Meta “impermissibly censored” the expressions, and the ability to receive the expressions of other members, of Wise Guys I and Wise Guys II, self-described Facebook users “who enjoy sharing their opinions regarding national and world events,” alleged a First Amendment complaint Friday (docket 3:23-cv-217) in U.S. District Court for Northern Texas in Dallas.

Alleging “viewpoint discrimination” related to COVID-19, the complaint said Meta violated Texas social media law HB 20 by “censoring and blocking” posts by members of Wise Guys and by “de-platforming Wise Guys I.” Both are private groups of Facebook users located throughout the U.S., including in Texas, they said.

In October 2016, Wise Guys I user posts on the government response to COVID-19 were “routinely censored” by being “blocked, banned, restricted, and removed,” on Facebook, the complaint said. Facebook informed Wise Guys I that its account was de-platformed Oct. 7 for violating “community standards,” the complaint said. The users regrouped as Wise Guys II on Oct. 11, and their posts were also blocked, banned, restricted and removed, it said, with Meta “repeatedly” threatening to de-platform the successor group.

Speech that’s treated differently by a government entity based on viewpoint is considered “viewpoint discrimination,” said the complaint: “The government may never prohibit speech simply on account of its viewpoint.” It referenced Biden administration press secretary Jen Psaki’s July 15, 2021, comments on government’s role in policing “misinformation” about COVID-19 and “problematic posts” on social media.

The complaint also cited testimony before Congress from Meta CEO Mark Zuckerberg saying the platform removed over 12 million posts about COVID-19 and vaccines at the request of the Biden administration. Some 95% of the time Facebook places warnings on posts its fact-checkers deem false, said the complaint, referencing Zuckerberg.

The plaintiffs seek declaratory relief under Chapter 120, Social Media Platforms, of the Texas Business and Commerce Code and under Chapter 143A, Discourse on Social Media Platforms, of the Texas Civil Practice & Remedies Code, including costs and attorneys’ fees. They also seek injunctive relief pursuant to HB 20 and a declaration that plaintiffs are entitled to damages for viewpoint discrimination by Facebook.

The complaint cited a lawsuit brought by NetChoice and CCIA challenging the constitutionality of HB 20, in which a lower court said HB 20’s constraints on how social media platforms disseminate content violate the First Amendment. In September, the 5th U.S. Circuit Court of Appeals reversed the lower court’s ruling in a 2-1 decision, upholding HB 20.

At that time, law professors and advocacy groups said they expected the case to go to the Supreme Court. The 5th Circuit decision creates a circuit split with an earlier 11th Circuit U.S. Court of Appeals decision striking down a Florida law similar to HB 20. Several justices indicated an interest in the matter in an earlier SCOTUS decision restoring an injunction in the case.

Public Knowledge condemned the 5th Circuit’s ruling in September: “The Fifth 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 that will have disastrous effects if it is not immediately reversed,” said Legal Director John Bergmayer.