A US federal appeals court upholds the Texas social media content moderation law, lifting an injunction that blocked it and remanding it back to the lower court

A federal appeals court upheld the validity of a Texas social-media law that companies like Twitter Inc. and Meta Platforms Inc …

Bloomberg 2022-09-17 Joe Schneider

Context & Ripple Effects

Texas’s limits on large platforms’ content moderation have moved through sharply different judicial outcomes: a federal judge first blocked the law on First Amendment grounds, an appeals panel later allowed enforcement, and the Supreme Court then put it on hold while the constitutional case continued. The latest appeals-court ruling reverses that interim posture by lifting the injunction and returning the dispute to the lower court.

First-order effects

Meta and Twitter face renewed exposure to Texas’s restrictions on content moderation after the injunction is lifted.
The lower court must continue the constitutional challenge under the appeals court’s ruling rather than the earlier injunction.

Second-order effects

Groups representing Meta, Google, and other platforms, which had sought Supreme Court intervention against the law, must continue their challenge in the remanded case while the law’s enforceability is strengthened by the appeals ruling.

Third-order effects

The litigation tests whether states can impose platform-neutral limits on moderation on the largest social services, potentially making court rulings a central determinant of how state-by-state platform rules develop.

The trend: US platform governance is increasingly being shaped by state laws that regulate major services’ moderation choices and by constitutional challenges to those laws.

Discussion

@kenpaxtontx Attorney General Ken Paxton on x
BREAKING: I just secured a MASSIVE VICTORY for the Constitution & Free Speech in fed court: #BigTech CANNOT censor the political voices of ANY Texan! The 5th Circuit “reject[s] the idea that corporations have a freewheeling First Amendment right to censor what people say. https:/…
@popehat @popehat on x
@mmasnick It really is the most angrily incoherent First Amendment decision I think I've ever read.
@corbinkbarthold Corbin K. Barthold on x
Judge Edith Jones remains undefeated. It's not editorial control, guys. It's algorithmic magic. https://twitter.com/...
@brendancarrfcc Brendan Carr on x
NEW: Big court win in the effort to end Big Tech's unchecked censorship. Fifth Circuit rejects a First Amendment challenge to the Texas social media law. “Today we reject the idea that corporations have a freewheeeling First Amendment right to censor what people say.” https://twi…
@berinszoka @berinszoka on x
Today's decision lets the Texas law go into effect Or, more precisely, it removes the district court's injunction, thus forcing the platforms to ask either the full Fifth Circuit en banc or SCOTUS to review the law on an emergency basis and stay its enforcement in the meantime ht…
@berinszoka @berinszoka on x
lol no The Packingham Court referred to tech companies as “town squares” in a purely colloquial sense. The case involved a state law compelling tech companies not to host sex offenders, so the Court didn't say anything about whether they were public fora absent such compulsion ht…
@davidakaye David Kaye on x
same people asserting that platforms cannot ‘censor’ speech are demanding that libraries must censor books. 🙃
@evacide Eva on x
The Fifth Circuit has published its opinion upholding HB 20 in Texas and everyone who cares about content moderation is going to be spending the weekend explaining why this is extremely bad: https://techfreedom.org/...
@mpetricone Michael Petricone on x
This is really bad. Stopping platforms from removing “viewpoint based” expression protects racists and nazis, and overrules decades or precedent. Great day for hate speakers, a terrible day for #1A and the US constitution. https://www.politico.com/...
@berinszoka @berinszoka on x
The court refused to strike down the TX law as facially unconstitutional because of overbreadth, suggesting that it would have to be challenged as to specific applications Just like Florida's 1903 must-carry mandate was unconstitutional as applied to all newspapers all the time? …
@berinszoka @berinszoka on x
And in Halleck (2019), Judge Kavanaugh, writing for the conservative majority, was very clear: “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.”
@jkempcpa Jeff Kemp on x
It really is. I really really really have tried to defend our legal system and our judges but you just can't - in this face of stuff like this. It's GOP homer Justice. They are political activists. Not judges. https://twitter.com/...
@berinszoka @berinszoka on x
The court's conclusion rests on the idea that no one could reasonably connect the platform to the speech they carry Tell that to Disney, which decided not to buy Twitter in 2016 because of, as its then-CEO put it, “all the hate speech” https://insidethemagic.net/... https://twitt…
@adamkovac Adam Kovacevich on x
This ⤵️ is the key news from today's ruling: Texas' anti-content moderation law is now in effect. Likely next steps: - NetChoice/CCIA files emergency injunction req to Alito - Alito can rule or refer to whole court (as he did with injunction) https://twitter.com/...
@hansmahncke Hans Mahncke on x
This part is so good. Big Tech can't justify their censorship regime by claiming free speech rights while at the same time also claiming Section 230 protections. You can't be a publisher while also claiming not to be a publisher. Beautiful. https://techfreedom.org/... https://twi…
@writerkevin Kevin S. Ford on x
@JameelJaffer 1/2: The court's use of the word “platforms” very purposefully obscures the fact that Twitter, Facebook, et al. are Web sites. Regardless of how many employees or offices they have around the world, they remain, at heart, dorm-room creations - NOT “communication fir…
@mattkilboy Matt Kilboy on x
This ruling cannot be allowed to stand. The party of “small government” continues to overstep its boundaries when it's convenient to them. https://www.washingtonpost.com/ ...
@kt_so_it_goes @kt_so_it_goes on x
wild how the “we don't want to be europe” people just continue to force all the shittiest features of europe on us https://twitter.com/...
@rothforidaho David Roth on x
Just to be clear this ruling means that companies can no longer choose how to operate their business they cannot make decisions based on profitability or user safety. They are restricted from running their business how they see fit. https://www.washingtonpost.com/ ...
@caseymattox_ Casey Mattox on x
So, on the NetChoice decision, lots more to say - but on the 2nd page, there's just no universe in which this is remotely true. If you think Twitter is a “monopolist” of the “modern public square” you need to touch a lot of grass. Or lay off a lot of it. Either way. https://twitt…
@berinszoka @berinszoka on x
Even for such a badly reasoned opinion, this is just embarrassing. The court is saying that the platforms getting Section 230 protection against liability somehow means they don't have First Amendment rights Literally Day One of Law School: statutes can't trump the Constitution h…
@mmasnick Mike Masnick on x
Hilariously, just after tweeting this nonsense, Paxton retweeted a claim about how he was trying to stop “activist judges.” Anyway, congrats to Paxton for saying that companies no longer have free speech rights. Can't see how that might backfire at all, no. https://twitter.com/..…
@evacide Eva on x
Is Texas' social media law an absolute disaster for content moderation? Yes. Yes it is. https://www.eff.org/...
@mask_bastard Meme Bastard Charles Khan on x
Every edgy comedian is about to move to Texas. https://twitter.com/...
@geoffmanne Geoffrey Manne on x
This is the key error. Just b/c the majority of content users post doesn't offend the community doesn't mean platforms can't exercise editorial discretion over *any* content. On this logic, the more cohesive the community, the better the editorial judgment, the less 1A protection…
@jameeljaffer Jameel Jaffer on x
The problem with this argument is that you can't just carve “editorial judgment” out of the First Amendment by recasting it as “censorship.” You need at the very least to offer a principle that distinguishes one from the other. No such principle is offered here. https://twitter.c…
@radleybalko Radley Balko on x
Holy shit, this is bad. They just upheld Texas' awful social media law. Oldham, Southwick, and Jones is a hell of a trio. https://twitter.com/...
@jameeljaffer Jameel Jaffer on x
Overall, this is a bad opinion. The TX law presents some very difficult questions, but simply relabeling “editorial judgment” as “censorship” doesn't help us answer them. Let's hope SCOTUS takes these questions more seriously. I assume that's where this case is going next. https:…
@monicaonairtalk Monica Matthews On Air on x
When you ask me how you take your country back- this type of commitment to the US Constitution, on a state level, is how. (And repentance & prayer) https://twitter.com/...
@steve_vladeck Steve Vladeck on x
The good news is that it's not long for this world. #SCOTUS has already blocked #HB20, and the circuit split with the 11th Circuit will almost surely be resolved in the latter's favor. The bad news is that it's not an outlier; it's emblematic of what this court does every day. ht…
@leftynavyseal @leftynavyseal on x
WAPO: In unprecedented deprivation of free speech, 5th Circuit crazies hold that Texas law depriving social media companies of the right to moderate content is valid. The law is that your use of social media is bound by the user contract, not the Constitution. Batshit crazy.
@basedkarbon @basedkarbon on x
Set your VPN to Texas and you can say whatever you want on twitter https://twitter.com/...
@esqueer_ Alejandra Caraballo on x
“It is my political view that trans people are groomers sexualizing children and they should be rounded up and executed.” Shocking? Twitter would be unable to remove this statement under Texas' social media law that the 5th Circuit put back into effect today.
@mmasnick Mike Masnick on x
The 5th Circuit has completely upended and rewritten the 1st Amendment. This is an astoundingly stupid ruling. https://twitter.com/...
@jeffjarvis Jeff Jarvis on x
As ever, @mmasnick explains it all, even when what he has to explain is utter idiocy. 5th Circuit Rewrites A Century Of 1st Amendment Law To Argue Internet Companies Have No Right To Moderate https://www.techdirt.com/... via @Techdirt
@ericowensdc Eric Owens on x
Under *current* law in several states, government can now compel any speech it wants on private property. The First Amendment only limits state power to remove speech, while leaving open the power of the state to compel publishers to speak. https://www.techdirt.com/...
@fernandorgallo Fernando Gallo on x
The 5th circuit just ruled that companies can't censor or moderate their own platforms https://twitter.com/...
@xor Parker Higgins on x
Grateful that, per usual, @mmasnick was able to quickly get some smart analysis together of this catastrophically bad 5th Circuit ruling. Really really dangerous development for the First Amendment, and it's hard to see how it gets better https://www.techdirt.com/...
@mschruers Matt Schruers on x
“The future of how the internet works is very much at stake with this one.” https://www.techdirt.com/...

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