The 15-word ruling allowing enforcement of the law, which was banned last year, has significant potential consequences. Soon, it creates new legal risks for the tech giants, opening them to a potential wave of lawsuits that legal experts say will be costly and difficult to defend.
The law creates a huge amount of uncertainty about how social media actually operates in Texas, according to legal experts, and raises questions about what user spaces on the Internet might look like and what content they might find there, if companies were even able to operate their services at all. .
The ruling also paves the way for what could be a Supreme Court showdown over First Amendment rights, possibly a dramatic reinterpretation of those rights that affect not only the tech industry but all Americans — and decades of well-established precedent.
In short, the decision allowed Texas to declare an open season on tech platforms, with massive repercussions for everyone in the country. It can reshape the rights and obligations of all sites; our relationship with technology and the Internet; And even our basic and basic understanding of the First Amendment.
Controversial law in effect
The origins of the Texas law, HB 20, lie in the longstanding Republican criticism that tech platforms discriminate politically against conservative users, a charge the companies have denied and which platform moderation researchers say there is little systematic evidence to support.
The law, which seeks to remedy the perceived flaw, was blocked by a district court judge in December and ruled unconstitutional under the First Amendment. This decision came months after a similar law was banned in Florida for the same reason.
But that all changed this week, when in oral arguments in the Fifth Circuit Court of Appeals, a panel of three judges mixed social media platforms with Internet service providers; It is disputed that Facebook and Twitter are websites; He expressed surprise that a service like Twitter could naturally “select” the content that appears on its platform.
The result was Wednesday’s decision to overturn the lower court order that prevented the Texas law from going into effect. The ruling immediately prompted Texas Attorney General Ken Paxton – who is also empowered to sue tech companies under HB 20 – to declare victory.
The appeals court did not provide a written opinion explaining the decision, and technology advocacy groups that challenged the law did not give time to request an appeal.
Whatever happens next, legal experts seem convinced that the outcome will be chaos.
We are now in uncharted waters. For as long as the major social networks in the US have been around, they’ve been able to rely on Section 230 of the Communications Decency Act, a shield of responsibility for how platforms handle user-generated content. Section 230 has saved tech platforms from numerous lawsuits over the years. But Texas law is poised to change everything. The tech industry’s opponents had nothing like the HB 20 on their side.
The scope of the law is really broad, according to legal scholars. It is broad in terms of its text – explicitly naming at least nine types of mods of prohibited content – as well as its subtext. What does ‘de-reinforcement’ or ‘equal vision denial’ really mean? The ambiguity of these terms provides carte blanche for creative plaintiffs wanting to broaden definitions of the English language, according to Jeff Kosseff, professor of law at the US Naval Academy.
State law also forces tech companies to fight the same battles over and over again, and prevents them from citing a successful defense in one court as a way to nip similar cases in the bud in other courts.
In theory, Section 230 might still preempt state law and allow tech platforms to continue to evade liability. But the Fifth Circuit ruling casts a lot of doubt.
How can social media platforms respond?
Let’s say the law doesn’t hit another injunction, social media platforms must now try to figure out how to comply, knowing that litigation is ongoing and things can change — again.
What does social media look like in a post-HB 20 world? It is not clear. (Facebook and Twitter declined to comment for this story, and YouTube did not respond to a request for comment.)
One option for tech platforms is to turn off all algorithmic content filtering or ranking entirely. While it’s tempting to imagine all social media looking like a clean, reverse timeline feed that you can actually find on Twitter today (if you know where to look), that’s the best case and not the most likely scenario, according to Daphne Keeler, a liability expert Stanford University Statutes.
However, that may not protect tech platforms from lawsuits either. Thanks to the broad language of the law, the plaintiff could argue that Facebook silenced a user because her speech is now no longer visible under a mountain of spam. In this world, Facebook is being sued no matter what it does: sued for removing content and sued for not promoting content.
After all, removing the algorithmic amplification of some content could in itself be considered a kind of reduction, which is illegal under HB 20, Kosev told CNN. “Who do you know!” He said, stressing how open the possibilities are.
In the face of all this uncertainty, tech platforms could simply raise their hands and stop providing services in Texas altogether. But even withdrawing from Texas may not save them. Buried in law is the prohibition of discrimination against Texans based on their geographic location. By pulling out of Texas, tech companies could expose themselves to allegations that they discriminated geographically against Texas in violation of HB 20.
And that’s without going into all the ways people can try to maliciously manipulate the law. With VPNs, it’s trivial for your computer to become a “Texas” even if your physical body is sitting in Mississippi or Massachusetts. Can someone in those states benefit from HB 20 even if they don’t live in Texas? As Kosseff might say: Who knows!
Possible confrontation with the Supreme Court
After Wednesday’s decision, the dispute over HB 20 could end in the Supreme Court. The groups that have challenged HB 20 have at least two clear options before them: they can go directly to the Supreme Court, or they can request a re-hearing before a broader panel of appellate judges in the hope of a different outcome — which eventually could. Leads to a Supreme Court appeal anyway.
The fundamental question at the heart of the issue is whether Texas — a government entity — forces social media companies to host a speech with HB 20.
The concept of “government-imposed discourse” has long been deemed unconstitutional under the First Amendment. But the Supreme Court’s decision to uphold HB 20 may cast doubt on this old precedent. Kosev said that historical decisions dealing with forced speech and protections for editorial regulation could be significantly narrowed if not reversed in this scenario.
Then there is the fate of Section 230, the shield of responsibility that is a quarter of a century old. Since Section 230 is a federal law asserting the rights of websites to administer their software (above the First Amendment), a Supreme Court ruling upholding Texas law could create a conflict, raising questions about federal safeguards. Might the court take this opportunity to reduce or abolish Article 230 in the process? From anyone’s guess.
Another issue that could have far-reaching consequences is HB 20’s attempt to define social media platforms as “public carriers” akin to telephone companies, rail operators and electric utilities. Whether you agree with social media platforms as utilities or not, the discovery that supports this classification should give countries everywhere a roadmap for regulating online platforms like never before in internet history, with huge ramifications for the broader digital economy.
Depending on how it unfolds, this scenario could be the worst of all worlds – the legal equivalent of blowing things up and leaving everyone to pick up the pieces.