Break: Texas social media law is on hold as it heads to Supreme Court for review

A federal appeals court has agreed to suspend a Texas social media law, HB 20, which restricts content moderation actions on social media platforms. The United States Court of Appeals for the Fifth Circuit announced it was accepting a September request from social media platforms to block law enforcement as trade associations appeal the case to the Supreme Court .

HB 20 was signed into Texas law in September 2021, which prohibits social media companies (defined as social media platforms that functionally have more than 50 million active users in the United States in any month civil) to remove, demonetize, ban or restrict content. depending on the point of view of the user or another person. The law gives the Texas Attorney General the ability to sue to enforce moderation requirements. It also gives Texas residents a private right of action, allowing them to sue the platforms for declaratory relief or injunctive relief regarding social media moderation decisions. Finally, the law requires social media companies to disclose transparency reports on how they promote or moderate content.

Tech and social media groups have opposed the law, arguing that it is unconstitutional and prevents platforms from removing hate speech and extreme expressions. Social media platforms have viewed HB 20 as a challenge to First Amendment precedent, which states that the government cannot compel private entities to host speeches. In previous litigation, trade associations have argued that the law is preempted by Section 230 of the Communications Decency Act (CDA) and violates the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, Full Faith and Credit Clause and Trade Clause.

The trade associations, the Computer & Communications Industry Association and Netchoice, asked the appeals court to suspend the application of the law, so that the Supreme Court reconsiders the case. Trade associations note that the implementation of the law will force social media companies to spend billions of dollars to monitor their content, asking the appeals court to maintain the status quo as the case would be taken to court. Supreme Court. Trade associations expect the Supreme Court to rule in their favor, noting “clear First Amendment problems” that rob social media platforms of their ability to remove offensive and dangerous content and offer their users a safe and pleasant environment.

The law was reviewed by the Fifth Circuit committee in a published opinion that overturned a Texas federal court injunction blocking the law’s implementation. The Fifth Circuit’s decision to uphold the law was split, finding that the law actually protects free speech rather than suppressing it. In the partial dissent of U.S. Circuit Judge Leslie H. Southwick, he found that when social media platforms review their users’ content that can be moderated, allowed, promoted, boosted, etc., they are engaging in a expression protected by the First Amendment and the Supreme Court The court will have the final say. This split made it more likely that the case would be considered by the Supreme Court.

The Supreme Court recently agreed to hear a few cases regarding the regulation of social media; including agreeing to hear two cases that could narrow the scope of Section 230 of the Communications Decency Act. Additionally, the state of Florida passed a similar social media law in May 2021, which prevented social media platforms from “misrepresenting” political figures. The Eleventh Circuit Court of Appeals blocked that law, noting it was likely unconstitutional, and Florida has asked the Supreme Court to decide whether states can force social media companies to host content they seek. to delete.


The Supreme Court will have to answer a historic question in the battle over digital content and speech moderation rights. The results of the Supreme Court’s decision could affect many social media platforms and companies in their attempts to quash harmful speech. If the Supreme Court finds the laws to be constitutional, social media platforms may need to develop certain reporting and disclosure requirements to meet the requirements of the laws.

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