Texas AG Urges SCOTUS to Affirm 5th Circuit Decision, Uphold Social Media Law

Like the states that stepped in to prevent discrimination in “the last great communication revolution,” Texas enacted HB-20 to address discrimination by social media platforms, said the state attorney general's office in its opening brief at the U.S. Supreme Court Tuesday (docket 22-555) to affirm the 5th U.S. Circuit Court of Appeals’ decision upholding the statute’s constitutionality.

HB-20 prevents the world’s largest social media platforms from discriminating against their customers “based on characteristics having nothing to do with speech on their platforms,” said the brief. Under HB-20, Facebook can’t discriminate against someone because she lives in Texas, is a member of a teachers’ union “or said something decades ago in a college newspaper that Facebook now deems objectionable,” it said. HB-20 also prevents the platforms “from discriminating among user-generated content based on the viewpoints that users express on the platforms themselves,” it said.

HB-20 doesn’t bar the platforms “from saying anything they want -- even about specific posts,” said the brief. It specifically allows platforms to facilitate user choice “as to what they want to hear and from whom,” it said. That ensures that no users are “forced to hear anything they would rather not,” it said. HB-20 further requires covered platforms to publicly disclose their “acceptable-use policies and to inform users why they are denied service,” said the brief. That consumer-protection measure is consistent with the rule that states may require commercial entities to disclose purely factual and uncontroversial information about their services, it said.

The district court nevertheless “facially enjoined all applications” of HB-20, said the brief. It reasoned that because the platforms’ algorithms help determine the sequence in which user-generated content is displayed, “that content becomes the platforms’ own speech,” it said.

But the 5th Circuit “correctly held” that HB-20 “regulates the platforms’ conduct, not their expression,” said the brief. To the extent that speech “is even implicated,” HB-20 “just enables communication between willing speakers and willing listeners like earlier regulations on telegraphs and telephones,” it said.