A federal appeal The court has reintroduced a law in the state of Texas that bans “censorship” on social media platforms such as Facebook and Twitter, allowing Texas to enforce the law while lawsuits continue.
A U.S. district court judge had given a preliminary injunction against blocking the law in December and ruled that it violates the social network’s first amendment to moderate user-submitted content. Texas Attorney General Ken Paxton appealed the ban to the U.S. Court of Appeals for the Fifth Circuit, and a panel of three judges on Wednesday issued a ruling postponing the interim ban.
The decision did not explain the judges’ reasoning. “It is ordered that the appellant’s opposite proposal to suspend the injunctions pending an appeal be granted,” the ruling said. The panel’s decision was not unanimous, but it did not say how each judge voted.
The ruling is “sensationally radical,” said Corbin Barthold, an Internet policy adviser at TechFreedom, a libertarian think tank that filed a lawsuit in the lawsuit. “Social media companies now face the prospect of responsibility for making distinctions based on ‘point of view’. (For example, treating pro-ISIS content differently from anti-ISIS content.) But there are many other difficulties in applying this law. “No one – not lawyers, not judges, not experts in the field, not even the law’s own sponsors – knows what compliance with this law looks like,” said Barthold.
In a tweetPaxton called the decision a “BIG VICTORY against BIG TECH,” adding: “I look forward to continuing to defend the Constitution of HB 20.” State law states that a “social media platform may not censor a user” based on the user’s “point of view” and defines “censor” as “block, prohibit, remove, de-platform, demonetize, de-boost, restrict, deny equal access or visibility to or otherwise discriminate against expression. ” Texas state attorneys or users can sue social media platforms that violate this ban and win injunctions and reimbursement of litigation costs, the law says.
Judges “Struggling with basic technical concepts”
Oral arguments were held on Monday this week, and the judges “seemed to be struggling with basic technical concepts,” Protocol reported. The judges were skeptical of arguments put forward by tech industry groups NetChoice and the Computer & Communications & Industry Association (CCIA), which sued Texas for blocking the law. One “judge suggested that Twitter is not even a site, and another wondered if telephone companies have a first right of change to fire people from their services,” the Protocol wrote.
“Your clients are ISPs,” Judge Edith Jones reportedly told the NetChoice and CCIA attorney. “They are not websites.” The members of the two groups are in fact almost exclusively websites and online services rather than ISPs – see NetChoice’s members here and CCIAs here. Amazon, eBay, Facebook, Google, Twitter and Yahoo are all members of both groups.
At another point in the hearing, “Judge Andrew Oldham suggested that if the technology platforms were successful, it would allow telephone companies to kick users into action,” Protocol reported. “According to your theory, could Verizon decide that they want to overhear every phone call … and when they hear speech they don’t like, they end the phone call?” asked Oldham.
Telephone companies are classified as general operators and regulated by the Federal Communications Commission. Such a term has not been used on websites, although Supreme Court Justice Clarence Thomas has argued that digital platforms could be regulated as ordinary carriers.
CNN tech reporter Brian Fung also detailed the Fifth Circuit judges’ confusion in one Twitter thread. Oldham called it “extraordinary” that Twitter has a First Amendment right to ban certain forms of expression, even though the First Amendments-free freedom of expression is imposed on Congress, not private companies. Technology group lawyer Scott Keller pointed out that “when it comes to private entities, the government can not dictate what to convey, what they cannot convey,” according to Fung’s report.