US Appeals Court Rules Social Media Content Moderation Should Be Restricted

A federal court’s ruling leaves big social media platforms with a trying choice: Subject themselves to a plague of lawsuits from their most toxic users, or stop most of their content moderation and surrender their spaces to those same toxic users.

On Wednesday, a panel of the United States Court of Appeals for the Fifth Circuit overturned a stay of a social media law Texas passed last year that essentially outlaws viewpoint-based content moderation. The single-page ruling(Opens in a new window) from judges Jerry E. Smith, Stephen A. Higginson, and Don R. Willett allows the law to enter force while a challenge to that law from two tech industry groups continues.

House Bill 20(Opens in a new window), signed Sept. 9(Opens in a new window) by Gov. Greg Abbott, says online forums with more than 50 million monthly average users “may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: (1) the viewpoint of the user or another person; (2) the viewpoint represented in the user’s expression; or (3) a user’s geographic location in this state or any part of this state.”

The law defines “censor” as anything that impedes a post: “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”

The content that H.B. 20 says sites may still block is limited to material that federal law lets them censor, that organizations fighting sexual exploitation of children have flagged, that “directly incites criminal activity or consists of specific threats of violence” targeting “race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge,” or is “otherwise unlawful.”

Both the attorney general of Texas and private citizens can sue social media platforms for violating H.B. 20.

Advocates of the law, such as Abbott, have called it a required response(Opens in a new window) to sites favoring left-wing speakers over right-wing ones–the bill and a similar one in Florida were drafted after social sites banned President Trump for his incitement of the Jan. 6 insurrection and incessant lying about his 2020 electoral defeat–but its blanket ban on viewpoint moderation goes much further.

To put this in more specific terms, H.B. 20 would require Facebook to accept Vladimir Putin’s propagandists and Holocaust deniers and compel Twitter to welcome back the anti-vaxvers and ISIS advocates.

As Santa Clara University School of Law associate dean Eric Goldman wrote after the law’s passage(Opens in a new window):

 “To reinforce the point that the legislature has no interest in the quality of online discourse, the legislature rejected amendments that would have authorized Internet services to remove content related to Holocaust denialism, terrorism, or vaccine disinformation. In other words, the legislature is fine with the unrestricted proliferation of all of these categories of content.”

Goldman and other legal scholars have repeatedly noted that this flaw violates the First Amendment’s free-speech guarantees, which also protect a publisher’s right to choose what to publish. For example, PCMag has a First Amendment right to refuse to post your comment and to decline to publish the next post I write.

With the Texas law now in force, one person in particular should be watching its consequences with great interest: soon-to-be Twitter owner Elon Musk, who keeps saying that Twitter’s moderation policies should not go beyond blocking illegal content.

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