Socially Awkward Laws

A shadow docket move late Wednesday means the 5th Circuit has sided with the Texas GOP allowing the state's anti-social media moderation law to take full effect while the law is being reviewed by the courts, meaning Texas citizens can now sue social media giants like Facebook, Twitter and YouTube for any comment, content, or blocking moderation to the tune of billions.

A federal appeals court will let Texas enforce its new social media law — which targets Twitter, Facebook and other large platforms that Republicans accuse of censoring conservatives — even though the court has yet to rule on the law's constitutionality.

The one-sentence order by the 5th U.S. Circuit Court of Appeals, issued Wednesday evening, came with no explanation and was split 2-1, though the order did not indicate how the panel's three judges voted.

The law known as House Bill 20, approved largely along party lines by the Legislature last year, was blocked from taking effect in December by U.S. District Judge Robert Pitman of Austin.

Siding with two tech industry groups that challenged the law, Pitman said HB 20 was an unconstitutional violation of social media companies' free speech rights — interfering with the platforms' editorial discretion and their First Amendment right to moderate the third-party content they disseminate.

"HB 20 prohibits virtually all content moderation, the very tool that social media platforms employ to make their platforms safe, useful, and enjoyable for users," Pitman wrote.

Wednesday's order came only two days after the appeals court heard oral arguments in which Texas lawyers defended HB 20 as a legitimate effort to ban platforms from censoring certain viewpoints.

Texas argues that the large platforms are "common carrier" public forums, subjecting them to state regulation to ensure free and unobstructed access without fear of viewpoint discrimination.

Ken Paxton, the state's Republican attorney general, called the ruling a "big win against Big Tech."

"Texas's HB 20 is back in effect," Paxton wrote on Twitter. "The 5th Circuit made the right call here, and I look forward to continuing to defend the constitutionality of HB 20."

The Texas law lets users sue if they are blocked from posting on a large platform or if their posts are removed.

Tech industry groups argued that HB 20 would open social media platforms to countless lawsuits, upending their ability to enforce content moderation policies and protect users from abusive posts, scams or falsehoods.

Carl Szabo, vice president and general counsel of NetChoice, which challenged the Texas law, said the industry group plans to immediately appeal the order, which he called "an unusual and unfortunate move" because it was issued without explanation or addressing the law's merits.

 

The countless lawsuits and inability to protect users from abuse, disinformation, and harassment is the entire point, and as of right now, expect any efforts to moderate the worst, most racist, most misogynist, most antisemitic content on social media to end immediately.

And if this is upheld by SCOTUS, and there's no reason to think otherwise, expect the end of social media as we know it.

Trump's Truth Social and white supremacist hotbeds like Gab and Parler will be the only games in town very soon.