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Court of Appeals Revitalizes Texas Law Targeting Social Media Companies


A Texas law banning major social media companies from removing political speech was the first of its kind, enacted Wednesday, raising complex questions about how to follow rules for major web platforms.

The law, which applies to social media platforms with 50 million or more monthly active users in the United States, was passed last year by lawmakers who objected to sites like Facebook and Twitter as conservative publishers and personalities removed their posts. The law makes it possible for users or the state’s attorney general to sue online platforms that remove posts because they express a particular viewpoint.

The United States Court of Appeals for the Fifth Circuit, based in New Orleans, briefly reversed an earlier decision that stopped the state from enforcing the law. While tech industry groups that challenge the law are expected to appeal the decision, it creates uncertainty for major web platforms that could face lawsuits if they decide to remove content for violating its rules.

The surprise decision came amid a broader debate in Washington, state buildings and foreign capitals over how to balance freedom of expression and online safety. Some members of Congress have suggested making online platforms accountable when they promote discriminatory advertisements or misinformation about public health. European Union last month had an agreement about rules aimed at combating disinformation and increasing transparency about how social media companies operate.

But conservatives said the platforms removed too much content instead of too little. Many applauded Elon Musk’s recent purchase of Twitter because it promised lighter restrictions on speech. When the site banned President Donald J. Trump after the attack on the Capitol on January 6, 2021, Republicans in government offices proposed legislation to regulate how companies implemented their policies.

“My office just made another BIG WIN against BIG TECH,” Texas attorney general and Republican Ken Paxton said in a tweet after the law was reinstated. A spokesperson for Mr. Paxton did not provide details of how the attorney general plans to enforce the law.

Florida passed a bill last year that would penalize companies if certain political candidates closed their accounts, but a federal judge blocked the law from enactment after tech industry groups sued. The Texas bill takes a slightly different approach, saying that a platform cannot “censor a user, a user’s testimony, or a user’s ability to take another person’s testimony” based on “the user’s or another person’s point of view.”

The law does not prevent platforms from removing content when they are notified by organizations that monitor the online sexual exploitation of children, or when they “consist of certain threats of violence” against someone based on the person’s race or other protected qualities. The law also includes provisions that require online platforms to be transparent about their moderation policies.

When the Texas governor enacted the state law in September, the tech industry sued to block it. He argued that his ban on the platforms violated his own free speech rights to remove anything they deem objectionable.

The United States District Court for the Western District of Texas repealed the law in December, saying it violated the Constitution. When the appeals court overturned the district court’s decision Wednesday, it did not give weight to the merits of the law.

“We’re considering our options and plan to appeal the decision immediately,” said Carl Szabo, vice president of NetChoice, a group funded by companies like Google, Meta and Twitter, which are suing to block the law.

Facebook and Twitter spokespeople declined to comment on their plans.

Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, who has briefed against the law in Texas and Florida, said it was “really disturbing” that the appeals court bought Texas’s argument that the law was legally permissible. .

“To accept this theory is to give the government comprehensive power to distort or manipulate online discourse,” he said.

Critics of the law say they believe it will put platforms in a bind: drop disinformation and racist content, or face lawsuits across Texas. Daphne Keller, a former attorney at Google and now director of the platform regulation program at Stanford University’s Center for Cyber ​​Policy, said that complying with the law “drastically changes the service they offer” for a company.

Ms Keller said companies may consider restricting access to websites in Texas. But it’s unclear whether this move would violate the law.

“If you’re the company, I’m sure it’s ‘Can we do this?’ you think,” he said. “Then there is the question of how this will play out in the public eye.”



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