Texas AG: Lift Injunction Against Social Media Law
The 5th U.S. Circuit Court of Appeals should lift a district court injunction against Texas’ social media law and remand the case to assess the tech industry’s First Amendment challenge at a more granular level, Texas Attorney General Ken Paxton (R) argued Wednesday (docket 21-51178).
Paxton, NetChoice and the Computer & Communications Industry Association on Wednesday filed their first 5th Circuit briefs since the U.S. Supreme Court remanded the case (see 2407010053). A SCOTUS majority, led by Justice Elena Kagan, found the 11th U.S. Circuit Court of Appeals, located in Atlanta, and the 5th Circuit, in New Orleans, didn't conduct a “proper analysis” of the tech industry’s facial First Amendment challenges against laws in Texas and Florida. Kagan wrote the Texas law is “unlikely to withstand First Amendment scrutiny,” a contention conservative justices regarded as “nonbinding dicta.”
Paxton urged that the 5th Circuit lift the injunction and let parties “engage in the fact-finding necessary to properly assess” the tech industry’s facial challenge against Texas’ HB-20. The U.S. District Court for the Western District of Texas in December 2021 issued its preliminary injunction, finding the law’s sections 7 and 2 to be “facially unconstitutional,” meaning they violate the Constitution in all applications. In addition, the court found the First Amendment protects social media platforms’ editorial discretion and HB-20 interferes. The 5th Circuit in September 2022 reversed the injunction, rejecting the notion that platforms have a “freewheeling” First Amendment right to censor “what people say.”
Paxton’s filing cited SCOTUS' finding that it was a “legal error” for lower courts not to consider HB-20’s application to specific social media functions like email, messaging and payment services. The high court left open questions including whether a platform is engaging in speech when it uses “algorithms [that] respond solely to how users act online,” said Paxton. He recommended the 5th Circuit instruct the district court to have the tech industry distinguish when it’s claiming First Amendment protection or immunity under Communications Decency Act Section 230 for every application of HB-20. “They cannot have it both ways,” said Paxton.
CCIA and NetChoice asked the court to uphold the district court injunction until a final judgment can strike down the law permanently. They argued the parameters of their facial challenge are “easy to draw.” HB-20 is limited to companies with 50 million active monthly users, and it regulates “curated feeds of user posts,” they said. There are “millions” of unconstitutional applications of HB-20’s Section 7. The plain text of the statute excludes email, online marketplaces, payment services, ride-hailing services, direct messaging and events management, they added.
“Multiple courts, including the Supreme Court, have already expressed the view that Texas’ must-carry social media law attempts to force private actors to speak and thus violates the First Amendment,” said CCIA Chief of Staff Stephanie Joyce in a statement. “We look forward to securing a final judgment that this statute is unconstitutional and cannot remain on the books.”