A Texas bill imposing strict requirements on social media firms has been struck down by the nation’s highest court
The US Supreme Court has ruled against a Texas law which effectively barred social media companies from moderating user content online, temporarily blocking the legislation as a major legal battle plays out between the state government and Big Tech lobbies.
In an opinion handed down on Tuesday, the court said it would grant a preliminary injunction against the Texas attorney general, prohibiting him from enforcing the law in question after a pair of major trade associations sued on allegations that it is “facially unconstitutional” under the First Amendment.
The law, dubbed HB20, states that large social media platforms may not “censor a user, a user’s expression, or a user’s ability to receive the expression of another person” under most circumstances, and was passed by Texas Republicans claiming that social media sites disproportionately target conservative users. After signing the bill, Governor Greg Abbott pointed to a “dangerous movement by social media companies to silence conservative viewpoints and ideas,” insisting “we will not allow it in Texas.”
While the court’s injunction is temporary and will merely block the law from being enforced as the legal clash unfolds, Big Tech lobbyists involved in the case have nonetheless cheered the decision.
“This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law,” said Matt Schruers, president of the Computer and Communications Industry Association.
The association represents a who’s-who of Big Tech and social media firms, among them Twitter, Facebook, Google, Amazon and Apple. Another lobbying group with a similar roster of major firms, NetChoice, is also taking part in the lawsuit.
While Tuesday’s opinion did not explain the justices’ reasoning, it did include a dissent from conservative Justice Samuel Alito, who stressed the importance of states’ rights against federal intrusion.
“While I can understand the Court’s apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction issued by the District Court was itself a significant intrusion on state sovereignty,” Alito wrote, referring to a previous ruling by a lower court. He added that “Texas should not be required to seek pre-clearance from the federal court before its laws go into effect.”
The ruling follows a similar decision by a US appeals court in May, which struck down a Florida law seeking to impose restrictions on social media companies and their moderation practices. Signed by Governor Ron DeSantis last year, the law would have enabled the state government to fine social media firms up to $250,000 per day, among other penalties, if they were found to have removed the account of a statewide political candidate. As with the Texas legislation, lobbying outfits NetChoice and the Computer and Communications Industry Association were both involved in challenging the Florida law.
| By: Cain, et al. (Senate Sponsor – Hughes) | H.B. No. 20 | |
| (In the Senate – Received from the House August 30, 2021; | ||
| August 30, 2021, read first time and referred to Committee on State | ||
| Affairs; August 30, 2021, reported favorably by the following | ||
| vote: Yeas 7, Nays 2; August 30, 2021, sent to printer.) | ||
| relating to censorship of or certain other interference with | ||
| digital expression, including expression on social media platforms | ||
| or through electronic mail messages. | ||
| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
| SECTION 1. The legislature finds that: | ||
| (1) each person in this state has a fundamental | ||
| interest in the free exchange of ideas and information, including | ||
| the freedom of others to share and receive ideas and information; | ||
| (2) this state has a fundamental interest in | ||
| protecting the free exchange of ideas and information in this | ||
| state; | ||
| (3) social media platforms function as common | ||
| carriers, are affected with a public interest, are central public | ||
| forums for public debate, and have enjoyed governmental support in | ||
| the United States; and | ||
| (4) social media platforms with the largest number of | ||
| users are common carriers by virtue of their market dominance. | ||
| SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is | ||
| amended by adding Chapter 120 to read as follows: | ||
| CHAPTER 120. SOCIAL MEDIA PLATFORMS | ||
| SUBCHAPTER A. GENERAL PROVISIONS | ||
| Sec. 120.001. DEFINITIONS. In this chapter: | ||
| (1) “Social media platform” means an Internet website | ||
| or application that is open to the public, allows a user to create | ||
| an account, and enables users to communicate with other users for | ||
| the primary purpose of posting information, comments, messages, or | ||
| images. The term does not include: | ||
| (A) an Internet service provider as defined by | ||
| Section 324.055; | ||
| (B) electronic mail; or | ||
| (C) an online service, application, or website: | ||
| (i) that consists primarily of news, | ||
| sports, entertainment, or other information or content that is not | ||
| user generated but is preselected by the provider; and | ||
| (ii) for which any chat, comments, or | ||
| interactive functionality is incidental to, directly related to, or | ||
| dependent on the provision of the content described by Subparagraph | ||
| (i). | ||
| (2) “User” means a person who posts, uploads, | ||
| transmits, shares, or otherwise publishes or receives content | ||
| through a social media platform. The term includes a person who has | ||
| a social media platform account that the social media platform has | ||
| disabled or locked. | ||
| Sec. 120.002. APPLICABILITY OF CHAPTER. (a) This chapter | ||
| applies only to a user who: | ||
| (1) resides in this state; | ||
| (2) does business in this state; or | ||
| (3) shares or receives content on a social media | ||
| platform in this state. | ||
| (b) This chapter applies only to a social media platform | ||
| that functionally has more than 50 million active users in the | ||
| United States in a calendar month. | ||
| Sec. 120.003. CONSTRUCTION OF CHAPTER. This chapter may | ||
| not be construed to limit or expand intellectual property law. | ||
| SUBCHAPTER B. DISCLOSURE REQUIREMENTS | ||
| Sec. 120.051. PUBLIC DISCLOSURES. (a) A social media | ||
| platform shall, in accordance with this subchapter, publicly | ||
| disclose accurate information regarding its content management, | ||
| data management, and business practices, including specific | ||
| information regarding the manner in which the social media | ||
| platform: | ||
| (1) curates and targets content to users; | ||
| (2) places and promotes content, services, and | ||
| products, including its own content, services, and products; | ||
| (3) moderates content; | ||
| (4) uses search, ranking, or other algorithms or | ||
| procedures that determine results on the platform; and | ||
| (5) provides users’ performance data on the use of the | ||
| platform and its products and services. | ||
| (b) The disclosure required by Subsection (a) must be | ||
| sufficient to enable users to make an informed choice regarding the | ||
| purchase of or use of access to or services from the platform. | ||
| (c) A social media platform shall publish the disclosure | ||
| required by Subsection (a) on an Internet website that is easily | ||
| accessible by the public. | ||
| Sec. 120.052. ACCEPTABLE USE POLICY. (a) A social media | ||
| platform shall publish an acceptable use policy in a location that | ||
| is easily accessible to a user. | ||
| (b) A social media platform’s acceptable use policy must: | ||
| (1) reasonably inform users about the types of content | ||
| allowed on the social media platform; | ||
| (2) explain the steps the social media platform will | ||
| take to ensure content complies with the policy; | ||
| (3) explain the means by which users can notify the | ||
| social media platform of content that potentially violates the | ||
| acceptable use policy, illegal content, or illegal activity, which | ||
| includes: | ||
| (A) an e-mail address or relevant complaint | ||
| intake mechanism to handle user complaints; and | ||
| (B) a complaint system described by Subchapter C; | ||
| and | ||
| (4) include publication of a biannual transparency | ||
| report outlining actions taken to enforce the policy. | ||
| Sec. 120.053. BIANNUAL TRANSPARENCY REPORT. (a) As part of | ||
| a social media platform’s acceptable use policy under Section | ||
| 120.052, the social media platform shall publish a biannual | ||
| transparency report that includes, with respect to the preceding | ||
| six-month period: | ||
| (1) the total number of instances in which the social | ||
| media platform was alerted to illegal content, illegal activity, or | ||
| potentially policy-violating content by: | ||
| (A) a user complaint; | ||
| (B) an employee of or person contracting with the | ||
| social media platform; or | ||
| (C) an internal automated detection tool; | ||
| (2) subject to Subsection (b), the number of instances | ||
| in which the social media platform took action with respect to | ||
| illegal content, illegal activity, or potentially policy-violating | ||
| content known to the platform due to the nature of the content as | ||
| illegal content, illegal activity, or potentially policy-violating | ||
| content, including: | ||
| (A) content removal; | ||
| (B) content demonetization; | ||
| (C) content deprioritization; | ||
| (D) the addition of an assessment to content; | ||
| (E) account suspension; | ||
| (F) account removal; or | ||
| (G) any other action taken in accordance with the | ||
| platform’s acceptable use policy; | ||
| (3) the country of the user who provided the content | ||
| for each instance described by Subdivision (2); | ||
| (4) the number of coordinated campaigns, if | ||
| applicable; | ||
| (5) the number of instances in which a user appealed | ||
| the decision to remove the user’s potentially policy-violating | ||
| content; | ||
| (6) the percentage of appeals described by Subdivision | ||
| (5) that resulted in the restoration of content; and | ||
| (7) a description of each tool, practice, action, or | ||
| technique used in enforcing the acceptable use policy. | ||
| (b) The information described by Subsection (a)(2) must be | ||
| categorized by: | ||
| (1) the rule violated; and | ||
| (2) the source for the alert of illegal content, | ||
| illegal activity, or potentially policy-violating content, | ||
| including: | ||
| (A) a government; | ||
| (B) a user; | ||
| (C) an internal automated detection tool; | ||
| (D) coordination with other social media | ||
| platforms; or | ||
| (E) persons employed by or contracting with the | ||
| platform. | ||
| (c) A social media platform shall publish the information | ||
| described by Subsection (a) with an open license, in a | ||
| machine-readable and open format, and in a location that is easily | ||
| accessible to users. | ||
| SUBCHAPTER C. COMPLAINT PROCEDURES | ||
| Sec. 120.101. COMPLAINT SYSTEM. A social media platform | ||
| shall provide an easily accessible complaint system to enable a | ||
| user to submit a complaint in good faith and track the status of the | ||
| complaint, including a complaint regarding: | ||
| (1) illegal content or activity; or | ||
| (2) a decision made by the social media platform to | ||
| remove content posted by the user. | ||
| Sec. 120.102. PROCESSING OF COMPLAINTS. A social media | ||
| platform that receives notice of illegal content or illegal | ||
| activity on the social media platform shall make a good faith effort | ||
| to evaluate the legality of the content or activity within 48 hours | ||
| of receiving the notice, excluding hours during a Saturday or | ||
| Sunday and subject to reasonable exceptions based on concerns about | ||
| the legitimacy of the notice. | ||
| Sec. 120.103. REMOVAL OF CONTENT; EXCEPTIONS. (a) Except | ||
| as provided by Subsection (b), if a social media platform removes | ||
| content based on a violation of the platform’s acceptable use | ||
| policy under Section 120.052, the social media platform shall, | ||
| concurrently with the removal: | ||
| (1) notify the user who provided the content of the | ||
| removal and explain the reason the content was removed; | ||
| (2) allow the user to appeal the decision to remove the | ||
| content to the platform; and | ||
| (3) provide written notice to the user who provided | ||
| the content of: | ||
| (A) the determination regarding an appeal | ||
| requested under Subdivision (2); and | ||
| (B) in the case of a reversal of the social media | ||
| platform’s decision to remove the content, the reason for the | ||
| reversal. | ||
| (b) A social media platform is not required to provide a | ||
| user with notice or an opportunity to appeal under Subsection (a) if | ||
| the social media platform: | ||
| (1) is unable to contact the user after taking | ||
| reasonable steps to make contact; or | ||
| (2) knows that the potentially policy-violating | ||
| content relates to an ongoing law enforcement investigation. | ||
| Sec. 120.104. APPEAL PROCEDURES. If a social media | ||
| platform receives a user complaint on the social media platform’s | ||
| removal from the platform of content provided by the user that the | ||
| user believes was not potentially policy-violating content, the | ||
| social media platform shall, not later than the 14th day, excluding | ||
| Saturdays and Sundays, after the date the platform receives the | ||
| complaint: | ||
| (1) review the content; | ||
| (2) determine whether the content adheres to the | ||
| platform’s acceptable use policy; | ||
| (3) take appropriate steps based on the determination | ||
| under Subdivision (2); and | ||
| (4) notify the user regarding the determination made | ||
| under Subdivision (2) and the steps taken under Subdivision (3). | ||
| SUBCHAPTER D. ENFORCEMENT | ||
| Sec. 120.151. ACTION BY ATTORNEY GENERAL. (a) The attorney | ||
| general may bring an action against a social media platform to | ||
| enjoin a violation of this chapter. | ||
| (b) If an injunction is granted in an action brought under | ||
| Subsection (a), the attorney general may recover costs incurred in | ||
| bringing the action, including reasonable attorney’s fees and | ||
| reasonable investigative costs. | ||
| SECTION 3. The heading to Chapter 321, Business & Commerce | ||
| Code, is amended to read as follows: | ||
| CHAPTER 321. REGULATION OF [ |
||
| SECTION 4. Section 321.001, Business & Commerce Code, is | ||
| amended by adding Subdivision (4-a) to read as follows: | ||
| (4-a) “Malicious computer code” means an unwanted | ||
| computer program or other set of instructions inserted into a | ||
| computer’s memory, operating system, or program that: | ||
| (A) is specifically constructed with the ability | ||
| to replicate itself or to affect the other programs or files in the | ||
| computer by attaching a copy of the unwanted program or other set of | ||
| instructions to one or more computer programs or files; or | ||
| (B) is intended to perform an unauthorized | ||
| process that will adversely impact the confidentiality of | ||
| information contained in or the integrity or availability of the | ||
| computer’s memory, operating system, or program. | ||
| SECTION 5. Subchapter B, Chapter 321, Business & Commerce | ||
| Code, is amended by adding Section 321.054 to read as follows: | ||
| Sec. 321.054. IMPEDING ELECTRONIC MAIL MESSAGES | ||
| PROHIBITED. An electronic mail service provider may not | ||
| intentionally impede the transmission of another person’s | ||
| electronic mail message based on the content of the message unless: | ||
| (1) the provider is authorized to block the | ||
| transmission under Section 321.114 or other applicable state or | ||
| federal law; or | ||
| (2) the provider has a good faith, reasonable belief | ||
| that the message contains malicious computer code, obscene | ||
| material, material depicting sexual conduct, or material that | ||
| violates other law. | ||
| SECTION 6. Section 321.105(a), Business & Commerce Code, is | ||
| amended to read as follows: | ||
| (a) In lieu of actual damages, a person injured by a | ||
| violation of this chapter arising from the transmission of an | ||
| unsolicited or commercial electronic mail message or by a violation | ||
| of Section 321.054 may recover an amount equal to the lesser of: | ||
| (1) $10 for each unlawful message or each message | ||
| unlawfully impeded, as applicable; or | ||
| (2) $25,000 for each day the unlawful message is | ||
| received or the message is unlawfully impeded, as applicable. | ||
| SECTION 7. Title 6, Civil Practice and Remedies Code, is | ||
| amended by adding Chapter 143A to read as follows: | ||
| CHAPTER 143A. DISCOURSE ON SOCIAL MEDIA PLATFORMS | ||
| Sec. 143A.001. DEFINITIONS. In this chapter: | ||
| (1) “Censor” means any action taken to edit, alter, | ||
| block, ban, delete, remove, deplatform, demonetize, de-boost, | ||
| regulate, restrict, inhibit the publication or reproduction of, or | ||
| deny equal access or visibility to expression, to suspend a right to | ||
| post, remove, or post an addendum to any content or material posted | ||
| by a user, or to otherwise discriminate against expression. | ||
| (2) “Expression” means any word, music, sound, still | ||
| or moving image, number, or other perceivable communication. | ||
| (3) “Receive,” with respect to an expression, means to | ||
| read, hear, look at, access, or gain access to the expression. | ||
| (4) “Social media platform” has the meaning assigned | ||
| by Section 120.001, Business & Commerce Code. | ||
| (5) “Unlawful expression” means an expression that is | ||
| unlawful under the United States Constitution, federal law, the | ||
| Texas Constitution, or the laws of this state, including expression | ||
| that constitutes a tort under the laws of this state or the United | ||
| States. | ||
| (6) “User” means a person who posts, uploads, | ||
| transmits, shares, or otherwise publishes or receives expression, | ||
| through a social media platform. The term includes a person who has | ||
| a social media platform account that the social media platform has | ||
| disabled or locked. | ||
| Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media | ||
| platform may not censor a user, a user’s expression, or a user’s | ||
| ability to receive the expression of another person based on: | ||
| (1) the viewpoint of the user or another person; | ||
| (2) the viewpoint represented in the user’s expression | ||
| or another person’s expression; or | ||
| (3) a user’s geographic location in this state or any | ||
| part of this state. | ||
| (b) This section applies regardless of whether the | ||
| viewpoint is expressed on a social media platform or through any | ||
| other medium. | ||
| Sec. 143A.003. WAIVER PROHIBITED. (a) A waiver or | ||
| purported waiver of the protections provided by this chapter is | ||
| void as unlawful and against public policy, and a court or | ||
| arbitrator may not enforce or give effect to the waiver, including | ||
| in an action brought under Section 143A.007, notwithstanding any | ||
| contract or choice-of-law provision in a contract. | ||
| (b) The waiver prohibition described by Subsection (a) is a | ||
| public-policy limitation on contractual and other waivers of the | ||
| highest importance and interest to this state, and this state is | ||
| exercising and enforcing this limitation to the full extent | ||
| permitted by the United States Constitution and Texas Constitution. | ||
| Sec. 143A.004. APPLICABILITY OF CHAPTER. (a) This chapter | ||
| applies only to a user who: | ||
| (1) resides in this state; | ||
| (2) does business in this state; or | ||
| (3) shares or receives expression in this state. | ||
| (b) This chapter applies only to expression that is shared | ||
| or received in this state. | ||
| (c) This chapter applies only to a social media platform | ||
| that functionally has more than 50 million active users in the | ||
| United States in a calendar month. | ||
| (d) This chapter applies to the maximum extent permitted by | ||
| the United States Constitution and the laws of the United States but | ||
| no further than the maximum extent permitted by the United States | ||
| Constitution and the laws of the United States. | ||
| Sec. 143A.005. LIMITATION ON EFFECT OF CHAPTER. This | ||
| chapter does not subject a social media platform to damages or other | ||
| legal remedies to the extent the social media platform is protected | ||
| from those remedies under federal law. | ||
| Sec. 143A.006. CONSTRUCTION OF CHAPTER. (a) This chapter | ||
| does not prohibit a social media platform from censoring expression | ||
| that: | ||
| (1) the social media platform is specifically | ||
| authorized to censor by federal law; | ||
| (2) is the subject of a referral or request from an | ||
| organization with the purpose of preventing the sexual | ||
| exploitation of children and protecting survivors of sexual abuse | ||
| from ongoing harassment; | ||
| (3) directly incites criminal activity or consists of | ||
| specific threats of violence targeted against a person or group | ||
| because of their race, color, disability, religion, national origin | ||
| or ancestry, age, sex, or status as a peace officer or judge; or | ||
| (4) is unlawful expression. | ||
| (b) This chapter may not be construed to prohibit or | ||
| restrict a social media platform from authorizing or facilitating a | ||
| user’s ability to censor specific expression on the user’s platform | ||
| or page at the request of that user. | ||
| (c) This chapter may not be construed to limit or expand | ||
| intellectual property law. | ||
| Sec. 143A.007. USER REMEDIES. (a) A user may bring an | ||
| action against a social media platform that violates this chapter | ||
| with respect to the user. | ||
| (b) If the user proves that the social media platform | ||
| violated this chapter with respect to the user, the user is entitled | ||
| to recover: | ||
| (1) declaratory relief under Chapter 37, including | ||
| costs and reasonable and necessary attorney’s fees under Section | ||
| 37.009; and | ||
| (2) injunctive relief. | ||
| (c) If a social media platform fails to promptly comply with | ||
| a court order in an action brought under this section, the court | ||
| shall hold the social media platform in contempt and shall use all | ||
| lawful measures to secure immediate compliance with the order, | ||
| including daily penalties sufficient to secure immediate | ||
| compliance. | ||
| (d) A user may bring an action under this section regardless | ||
| of whether another court has enjoined the attorney general from | ||
| enforcing this chapter or declared any provision of this chapter | ||
| unconstitutional unless that court decision is binding on the court | ||
| in which the action is brought. | ||
| (e) Nonmutual issue preclusion and nonmutual claim | ||
| preclusion are not defenses to an action brought under this | ||
| section. | ||
| Sec. 143A.008. ACTION BY ATTORNEY GENERAL. (a) Any person | ||
| may notify the attorney general of a violation or potential | ||
| violation of this chapter by a social media platform. | ||
| (b) The attorney general may bring an action to enjoin a | ||
| violation or a potential violation of this chapter. If the | ||
| injunction is granted, the attorney general may recover costs and | ||
| reasonable attorney’s fees incurred in bringing the action and | ||
| reasonable investigative costs incurred in relation to the action. | ||
| SECTION 8. (a) Mindful of Leavitt v. Jane L., 518 U.S. 137 | ||
| (1996), in which in the context of determining the severability of a | ||
| state statute the United States Supreme Court held that an explicit | ||
| statement of legislative intent is controlling, it is the intent of | ||
| the legislature that every provision, section, subsection, | ||
| sentence, clause, phrase, or word in this Act, and every | ||
| application of the provisions in this Act, are severable from each | ||
| other. | ||
| (b) If any application of any provision in this Act to any | ||
| person, group of persons, or circumstances is found by a court to be | ||
| invalid or unconstitutional, the remaining applications of that | ||
| provision to all other persons and circumstances shall be severed | ||
| and may not be affected. All constitutionally valid applications | ||
| of this Act shall be severed from any applications that a court | ||
| finds to be invalid, leaving the valid applications in force, | ||
| because it is the legislature’s intent and priority that the valid | ||
| applications be allowed to stand alone. | ||
| (c) If any court declares or finds a provision of this Act | ||
| facially unconstitutional, when discrete applications of that | ||
| provision can be enforced against a person, group of persons, or | ||
| circumstances without violating the United States Constitution and | ||
| Texas Constitution, those applications shall be severed from all | ||
| remaining applications of the provision, and the provision shall be | ||
| interpreted as if the legislature had enacted a provision limited | ||
| to the persons, group of persons, or circumstances for which the | ||
| provision’s application will not violate the United States | ||
| Constitution and Texas Constitution. | ||
| (d) The legislature further declares that it would have | ||
| enacted this Act, and each provision, section, subsection, | ||
| sentence, clause, phrase, or word, and all constitutional | ||
| applications of this Act, irrespective of the fact that any | ||
| provision, section, subsection, sentence, clause, phrase, or word, | ||
| or applications of this Act, were to be declared unconstitutional. | ||
| (e) If any provision of this Act is found by any court to be | ||
| unconstitutionally vague, the applications of that provision that | ||
| do not present constitutional vagueness problems shall be severed | ||
| and remain in force. | ||
| (f) No court may decline to enforce the severability | ||
| requirements of Subsections (a), (b), (c), (d), and (e) of this | ||
| section on the ground that severance would rewrite the statute or | ||
| involve the court in legislative or lawmaking activity. A court | ||
| that declines to enforce or enjoins a state official from enforcing | ||
| a statutory provision does not rewrite a statute, as the statute | ||
| continues to contain the same words as before the court’s decision. | ||
| A judicial injunction or declaration of unconstitutionality: | ||
| (1) is nothing more than an edict prohibiting | ||
| enforcement that may subsequently be vacated by a later court if | ||
| that court has a different understanding of the requirements of the | ||
| Texas Constitution or United States Constitution; | ||
| (2) is not a formal amendment of the language in a | ||
| statute; and | ||
| (3) no more rewrites a statute than a decision by the | ||
| executive not to enforce a duly enacted statute in a limited and | ||
| defined set of circumstances. | ||
| SECTION 9. Chapter 143A, Civil Practice and Remedies Code, | ||
| as added by this Act, applies only to a cause of action that accrues | ||
| on or after the effective date of this Act. | ||
| SECTION 10. This Act takes effect on the 91st day after the | ||
| last day of the legislative session. | ||
Supreme Court blocks social media law