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Federal court blocks Texas law banning ‘viewpoint discrimination’ on social media

A federal judge has blocked a Texas law that aimed to limit large social platforms’ ability to moderate content on the grounds that it is likely to violate the First Amendment. The order, issued by a federal district court in Austin on Wednesday night, granted an injunction proposed by NetChoice and the CCIA that puts the HB 20 law on hold until the conclusion of the case.

“HB 20’s prohibitions on ‘censorship’ and constraints on how social media platforms disseminate content violate the First Amendment,” determined Judge Robert Pitman in the decision. “Content moderation and curation will benefit users and the public by reducing harmful content and providing a safe, useful service,” Pitman said, explaining why the injunction was beneficial.

“Social media platforms have a First Amendment right to moderate content disseminated on their platforms,” the order reads, citing three separate Supreme Court decisions affirming the principle. “Private companies that use editorial judgment to choose whether to publish content — and, if they do publish content, use editorial judgment to choose what they want to publish — cannot be compelled by the government to publish other content.”

The Texas social media law bans web services with more than 50 million monthly active users from removing or otherwise limiting content based on the user’s “viewpoint,” among other regulations that are aimed at simultaneously discouraging moderation of controversial posts and requiring faster takedowns of illegal content. It’s intended to fight what Texas politicians have described as unfairly liberal-leaning moderation on sites like Facebook and Twitter.

But crucially, the court found that this alleged viewpoint discrimination can be cast as editorial discretion, which is protected by the First Amendment. “Without editorial discretion,” the order reads, “social media platforms could not skew their platforms ideologically, as the state accuses of them of doing.”

Judge Pitman also objected to rules that required publishing detailed moderation reports. The law’s disclosure rules are “inordinately burdensome given the unfathomably large numbers of posts on these sites and apps,” the order says. It also suggests that the law was intended specifically and unconstitutionally to target sites that politicians saw as anti-conservative, noting a failed amendment that could have lowered the user threshold to cover conservative-friendly sites like Parler and Gab. “The record in this case confirms that the legislature intended to target large social media platforms perceived as being biased against conservative views.”

NetChoice and the CCIA previously sued over a similar Florida social media law. That rule received a scathing rebuke from a judge who blocked its implementation in June.

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