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Texas Attempt to Protect ‘Conservative Ideas’ Will Actually Force Social Media Sites to ‘Disseminate Pro-Nazi Speech, Terrorist Propaganda, and Medical Misinformation’: Lawsuit

Gov. Greg Abbott

Texas Gov. Greg Abbott

Texas Governor Greg Abbott (R), who said that social media companies were part of a dangerous movement to “silence conservative ideas [and] religious beliefs,” now faces a federal lawsuit over his state’s purported efforts to protect free speech.

Abbott signed House Bill 20 into law on Sept. 9. The law prohibits social media companies from banning content based on “the viewpoint of the user or another person.” It also requires the companies to disclose their methods of moderating content.

Two tech industry trade associations, NetChoice and the Computer & Communications Industry Association (CCIA), filed a lawsuit Wednesday in federal district court in Texas, asking the court to strike down the law as an unconstitutional violation of the First Amendment. The complaint alleges that “H.B. 20 completely denies platforms their right of editorial discretion over what appears on their websites,” thereby “both compel[ing] speech and prohibit[ing] the covered platforms from engaging in their own speech.”

Although Texas’ rationale for the law is to prevent censorship, plaintiffs argue that it “imposes expression-chilling disclosure burdens and operational requirements” that violate constitutional guarantees against content-based regulation of speech. “At a minimum,” asserts the complaint, “H.B. 20 would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.”

Plaintiffs argue that although strict scrutiny is the correct framework under which to examine the law, it would fail under even a far lesser standard. The plaintiffs argue that Texas does not have the legally-protected interest in curating a “balance of viewpoints.” Even if the government did have such an interest, the complaint continues, H.B. 20 is far too broad to survive a legal challenge.

The lawsuit offers several rationales by which the court could block the Texas law from going into effect. In addition to pleading that the law is void for vagueness and violates the equal protection rights of social media companies, it raises two state-versus-federal turf battles. The lawsuit argues that Texas violated what is known as the “dormant commerce clause” by regulating in a manner that discriminates against out-of-state commerce (and thereby intruding into an area reserved only for Congressional legislation). It also argues that the Texas statute is pre-empted by 47 U.S.C. § 230(c)(2), known as “Section 230” of the Communications Decency Act. Section 230, the federal law former President Donald Trump often advocated to repeal, protects internet platforms from liability for content posted by users.

NetChoice and CCIA launched a similar lawsuit against the state of Florida to challenge Florida’s S.B, 7072, another statute aimed at protecting individuals from over-intrusive regulations by tech companies. In response to the lawsuit in Florida, Texas Attorney General Ken Paxton (R) promised to “ensure that conservative voices have the right to be heard” on social media and vowed to protect citizens against the manipulation of their political activities through the use of “super algorithms” and “artificial intelligence.”

“Allowing HB 20 to take effect will inflict significant harm on Texans by threatening the safety of users, creators, and businesses that use these websites to reach audiences in a family-friendly way,” said NetChoice president Steve DelBianco in a statement posted online. “No American should ever be forced to navigate through harmful and offensive images, videos and posts.”

CCIA President Matt Schruers issued a similar statement, saying, “There are few First Amendment fouls clearer than regulating based on viewpoint.”

“The law aside,” Schruers continued, “it’s neither good policy nor good politics for Texas to make the Internet a safe space for bad actors, whether that be Taliban sympathizers or people encouraging kids to eat detergent pods.”

AG Paxton’s office did not immediately respond to a request for comment.

[screengrab via WFAA-TV/YouTube]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos