Texas' content moderation law is clearly unconstitutional and forces social media services to allow a torrent of spam or face a deluge of frivolous litigation

So, I already had a quick post on the bizarre decision by the 5th Circuit to reinstate Texas' social media content moderation law …

Techdirt 2022-05-15 Mike Masnick

Context & Ripple Effects

This piece lands two days after the 5th Circuit's 2-1 ruling allowing Texas to enforce its social media law against services with 50M+ users, and the same day trade groups representing Meta and Google asked the Supreme Court to intervene. Techdirt's argument is that the statute leaves platforms no lawful middle path: carry everything users post, or absorb litigation from every removal.

First-order effects

Twitter, Facebook, and other covered services must either reinstate content they would normally remove — spam included — or defend each moderation decision against potential state legal action.
Meta, Google, and their trade associations are immediately pushed onto the Supreme Court's emergency docket, having already filed to block enforcement.

Second-order effects

The threat of per-decision lawsuits makes granular moderation economically untenable at scale, pressuring platforms toward blunt all-or-nothing policies rather than case-by-case curation.
SCOTUS granted the pause in a 5-4 vote putting the law on hold while the constitutional challenge proceeds, signaling that a majority of justices saw irreparable harm in enforcement — and setting up a full merits fight over whether platforms' editorial discretion is protected.

Third-order effects

If the 5th Circuit's framing survives, the ruling effectively rewrites how Section 230 interacts with state speech mandates, converting moderation from a private governance function into a litigable public obligation.
A sustained circuit split over platform editorial rights would force the Supreme Court to settle the scope of First Amendment protection for curation — the structural question underlying every state moderation law now in the pipeline.

The trend: State legislatures and sympathetic appellate courts are dismantling platforms' editorial discretion, pushing content-moderation governance from private policy toward constitutionally contested public regulation.

Discussion

@gaberivera Gabe Rivera on x
Wait, so the people who claimed Texas would be friendly to tech companies were not credible? https://twitter.com/...
@txag @txag on x
My office just secured another BIG WIN against BIG TECH. #Texas's HB20 is back in effect. The 5th Circuit made the right call here, and I look forward to continuing to defend the constitutionality of #HB20. https://twitter.com/...
@simonw Simon Willison on x
“Thanks to the law's broad language a plaintiff could try to argue Facebook has silenced a user because her speech is now no longer visible under a mountain of spam. In this world FB gets sued no matter what it does: Sued for taking down content & sued for not promoting content” …
@espinsegall Eric Segall on x
It feels like maybe SCOTUS should stay this law (as the lower court did before it went into effect) given it changes the whole freakin world. The 5th Circuit reversing the stay is another example of how it has gone rogue. https://www.cnn.com/...
@jelenawoehr @jelenawoehr on x
Wait. So the Republican agenda is to get rid of Section 230 (which would mean you can sue social media platforms for what people post on them) and then make it illegal for social media platforms to remove users' posts? I... WELL THEN. Hmm. https://twitter.com/...
@david_ingram David Ingram on x
Everyone ready for the Supreme Court to rule on content moderation? https://twitter.com/...
@philnobilejr Phil Nobile Jr on x
Uh oh. “A three-judge panel confused social media platforms with internet service providers; disputed that Facebook and Twitter are websites; and expressed surprise that a service such as Twitter could ‘just decide’ what content appears on its platform...” https://www.cnn.com/...
@sethabramson Seth Abramson on x
If you want to know why Elon Musk has put his deal for Twitter on hold, look no further than Texas. Every conservative lawyer in America is going to be filing lawsuits to try to end “censorship” of Twitter users; this is a new era in right-wing litigation. https://www.cnn.com/...
@soonergrunt @soonergrunt on x
@Popehat It's a law that's designed to make work for litigators because it's impossible to not violate some part of that law.
@jesselehrich Jesse Lehrich on x
HB20 is clearly unconstitutional. but unless SCOTUS intervenes, I see no option for platforms with 50M+ US users but to cut their services off in Texas altogether. that captures not just FB/YT/TW, but also IG, Snap, TikTok, Pinterest... maybe Reddit & others? https://twitter.com/…
@kevinmkruse Kevin M. Kruse on x
@jbf1755 I'm no lawyer, but ... couldn't the companies just block all IP addresses from Texas and wait for people there to demand the legislature repeal this law?
@4l0ts @4l0ts on x
there's probably a tiny asterisk somewhere in the law that's like “*UNLESS ITS NON-STRAIGHT NON-MISSIONARY PORNOGRAPHY”
@4l0ts @4l0ts on x
i know this law is actually just intended to let ppl like Emily Youcis back into centralized social media spaces but wouldn't it be funny if, as an unintended byproduct, tons of NSFW artists & sex workers flock to texas to start actually getting money & fair exposure online again…
@jesselehrich Jesse Lehrich on x
@WillOremus ... I'm kinda surprised no platforms have announced they're leaving Texas yet - may each is waiting for someone else to move first. if the dam breaks and there's a cascade of major services pulling out of Texas, that would probably drive home the stakes here...
@edroso Roy Edroso on x
Having fucked up schoolbooks and women's rights, Texas is about to fuck up the Internet. https://twitter.com/...
@agraybee @agraybee on x
I don't want to minimize this but I really need to underscore how central Roe has been in the conservative agenda in a way that has no good comparison. Amy Coney Barrett was genetically engineered to be a Roe-overturning supersoldier. https://twitter.com/...
@bkabak Ben K. on x
I said this earlier this week, but the right play both legally and politically is for these social media companies to immediately cease providing access to their platforms in Texas and be very vocal as to why. https://twitter.com/...
@antonio Antonio Altamirano on x
A company marketing vape pens to children is dangerous and is being sued continuously by several nonprofits, and school districts. Social media companies distributing fake news and turning a blind eye to disinformation campaigns should be held to the same standards. https://twitt…
@xor Parker Higgins on x
seems pretty bad that texas and the 5th circuit have pretty much decided rule of law is optional https://twitter.com/...
@steveklabnik @steveklabnik on x
well this is a clusterfuck https://twitter.com/...
@jamesrbuk James Ball on x
This is going to be a *mess*. https://twitter.com/...
@haircut_hippie @haircut_hippie on x
@Theophite I am feeling pretty thrilled about this in conjunction with the reality that I am legally obligated to report trans kids now and probably miscarriages in a few months etc
@theophite @theophite on x
@schnufflerowner i think that musk is intentionally trying to tank twitter's stock price so that he can violate the contract and renegotiate the deal
@anamardoll Ana Mardoll on x
Well, this is a shitstorm of awful. https://twitter.com/...
@theophite @theophite on x
the 5th circuit ruling on the texas social media law demonstrates that in the united states, constitutional law is whatever fox news says it is, which is to say: no one to the left has any rights as against any reactionary
@hippiegeekgirl @hippiegeekgirl on x
I know many great Texans on this bird site and they and many others don't deserve to be maligned or abandoned to the GOP's whims. That said... what the FUCK, Texas? DO WE NOT HAVE ENOUGH TO WORRY ABOUT RIGHT NOW? https://twitter.com/...
@theophite @theophite on x
remember that multiple red states have legalized our murder https://www.nytimes.com/...
@law_comedy John on x
@Popehat Well, since Twitter is not incorporated in Texas as far as I know, and since it also has its principal place of business in California, it sounds like this bill compels interstate commerce, the regulation of which lies solely in Congress's domain. One of the bill's many …
@szhang_ds @szhang_ds on x
With the restoration of HB20, it is now illegal for an email provider to “intentionally impede the transmission of another person's electronic mail message based on the content of the message.” In other words, spam filters are now illegal in the great state of Texas. https://twit…
@errantstrategry Strategy Badger on x
Read up on the Texas HB20, just reinstated by a federal appellate court. It's insane. https://twitter.com/...
@popehat @popehat on x
Question for fans of the Texas social media law. Should a state — say, Texas — be able to force a company — say, Twitter — to do business in their state, and let state residents sue the company if it doesn't want to do business there because the law is unfavorable?
@enternodecs @enternodecs on x
It is now illegal for social media platforms to ban shitty racist bigoted Texans https://twitter.com/...
@ericgarland Eric Garland on x
“Texas residents can now sue Facebook, Twitter and YouTube for allegedly censoring their content” Would that include residents like Brad Parscale, whose Texas firm conspired with hostile foreign intelligence and the above companies for Donald Trump? 🤔 https://www.cnn.com/...
@willoremus Will Oremus on x
A right-leaning federal court stunningly reinstated a Texas law allowing users to sue FB, Twitter & YouTube for viewpoint “censorship”—making content moderation all but impossible. Now it will likely fall to SCOTUS to decide the future of online speech: https://www.washingtonpost…
@jason_kint Jason Kint on x
They can't afford to. It would probably kick out 5% of Facebook's global revenues. But since they blocked news in Australia ahead of legislation as an apparent threat and compliance concern, it would be hypocritical not to pull out, eh? https://twitter.com/...
@b_fung Brian Fung on x
After the leaked opinion on Roe, we know this Court is absolutely willing to overturn decades-old precedents. It is not hard to imagine it revisiting some of its most basic convictions on speech. https://www.cnn.com/...
@willoremus Will Oremus on x
@NaomiNixWrites Another good story & thread on the Texas law by @b_fung. Tech reporters and First Amendment scholars are basically jumping up and down shouting “this is a big deal!!!” Not sure the message has quite broken through yet to the mainstream but I think it will. https:/…

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