Two technology trade groups sued Texas on Wednesday to block a new state law punishing social media platforms for allegedly censoring people over their political views.
Net Choice and the Computer and Communications Industry Association jointly filed the lawsuit in federal court alleging that House Bill 20 violates the First Amendment by forcing companies to give a platform to speech they don’t want to host.
"State governments cannot force social media – Net Choice and CCIA member companies – to carry content they don't want to carry," said Steve DelBianco, president and CEO of Net Choice. “It violates the community standards that they use to curate a community of online content that suits their advertisers and audience.”
HB 20 passed in the Texas Legislature during the second special session and took effect on Sept. 9.
At the heart of the law is a section that would allow users banned by social media for their political views to sue for reinstatement. If that person can't find a private attorney, the Texas attorney general may bring a suit on the person's behalf.
The lawsuit argues that the platforms have a First Amendment right to curate content and decide whether to host specific instances of speech as they see fit. It contends that HB 20 does not prevent censorship, but rather empowers the state of Texas to police and control online speech.
DelBianco said the law, as written, would prevent social media platforms from banning what he called "awful but lawful" speech, to the detriment of underage users.
"YouTube could no longer restrict a user-posted video that included hateful, racist, sexual content that was completely inappropriate for children," DelBianco said. “It could not mark it as restricted mode, even in Texas homes where parents had voluntarily turned on restricted mode, specifically to protect their children.”
The executive added that there were a number of other instances of protected speech that nonetheless violate the companies’ terms and conditions, including COVID-19 vaccine misinformation, antisemitism, and pornography.
The lawsuit also argues HB 20 violates the Fourteenth Amendment rights of equal protection under the law and due process, as well as the Commerce Clause of the U.S. Constitution, which gives Congress the power to regulate interstate commerce.
"These are arguments that you frequently see when a state oversteps the boundaries and attempts to regulate the speech of the private sector, and that's exactly what's happening here, " said CCIA president Matthew Schruers.
HB 20 passed largely on partisan lines. Republican lawmakers produced the measure in response to Twitter and Facebook shutting down conservative social media accounts, like the ones used by former President Donald Trump. Democrats have accused Republicans of trying to punish companies that have removed conservatives from their platforms for legitimate reasons.
The bill's sponsors, including state Sen. Bryan Hughes, R-Mineola, argued that social media platforms are not the functional equivalent of newspapers and broadcast companies. Rather, they are the equivalent of common carriers, such as cable and phone service providers, and as such, are subject to regulation to prevent them from discriminating against customers based on their viewpoints.
Gov. Greg Abbott announced his support for a precursor of HB 20 in March, arguing that social media companies restricting or banishing users because they held conservative views was a violation of freedom of speech.
“Social media sites have become our modern day public squares where information should be able to flow freely, but social media companies are now acting as judge and jury on determining what viewpoints are valid," Abbott said at the time.
This is not the first time Net Choice and the CCIA have teamed up to challenge a social media censorship law. In May, the two organizations sued to block a similar law enacted in Florida. A federal judge ruled in the groups' favor, blocking parts of the Florida law found to violate the First Amendment.
"When the State's own lawyers can't explain how the law works or even identify to whom it applies, there's just no way that Florida's enforcement of that law would keep users, creators, and advertisers safe from the tidal wave of offensive content and hate speech that would surely ensue," said Carl Szabo, vice president and general counsel of Net Choice, following the ruling in June.
This story was produced by Houston Public Media.