The tech industry’s worst nightmare came true Friday when the 5th Circuit upheld a law in Texas that prohibits platforms from moderating content on the basis of “viewpoint.” The on-again, off-again law had been blocked from taking effect twice before — first by a district court and more recently by the Supreme Court.
But the 5th Circuit’s decision had been a long time coming, and it wasn’t hard to predict which way it would go. During oral arguments in the case, one judge seemed skeptical of tech platforms’ power to patrol speech and questioned whether Twitter was even a website at all. “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the court's decision reads.
Now, the plaintiffs in the case — industry groups NetChoice and CCIA — are hoping the Supreme Court will fix what they argue the 5th Circuit got wrong. And there’s good reason to believe the Supreme Court will be game: The 11th Circuit has already struck down a similar social media law in Florida. It’s the Supreme Court’s job to break the tie.
But it could be a while before that happens, leaving tech platforms operating in Texas with a slew of impossible decisions to make and questions to answer in the meantime. Here are just a few:
Can platforms just block Texas?
The Texas law — HB 20 — forbids social media companies that operate in Texas and have more than 50 million active users from censoring speech based on the speaker’s viewpoint. So, can those companies get around compliance if they just stop operating in Texas altogether?
Not so fast. HB 20 makes clear that platforms can’t censor users based on the fact that they live in Texas, meaning cutting Texas off from, say, Facebook or Twitter would violate the law as written. And in its decision, the 5th Circuit defended that provision of the law right along with the provisions related to viewpoint censorship. The court wrote that Section 230, which gives platforms wide latitude to moderate content and thus runs counter to the Texas law, “says nothing about viewpoint-based or geography-based censorship.”
All of which is to say: Platforms can’t just up and leave Texas without a fight. But as legal scholars have pointed out, it’s entirely unclear that a state can actually compel a company to do business in that state. “If Texas can do this, can Connecticut make In-N-Out finally open a local franchise?” Stanford professor Daphne Keller asked back in May, when the 5th Circuit first let the law go into effect. “Can states with harsh anti-gay laws penalize companies that close their local offices or cancel events?”
Will app stores stand for lax content rules?
The most obvious argument against the Texas law is that it could compel platforms to host hateful, vile posts — and the people who post them — because taking them down might look like viewpoint discrimination. The 5th Circuit dismissed the plaintiffs’ argument that they’d be forced to give space to Nazis and terrorists under the law by accusing the platforms of having an ”obsession with terrorists and Nazis.”
But if platforms like Facebook and Twitter do allow all that speech to stand in Texas in order to comply with the law, will they risk being out of compliance with app stores’ terms? After all, Parler got booted from both Apple’s and Google’s app stores over its failure to adequately police content after the Jan. 6 riot. More recently, Google’s Play Store kicked off former President Trump’s app, Truth Social, over similar concerns about content moderation. Would the same thing happen to more mainstream platforms, or would app stores have to adapt too?
Is there any way to strike a middle ground?
For all of the restrictions the law puts on platforms’ ability to moderate speech, it does give platforms’ users the ability to restrict speech as they see fit. That, Keller also points out, could present an opportunity for compromise, where platforms give Texas users an unfiltered view but offer them easy ways to opt out of The Bad Place if they want to.
That, of course, would require quite a bit of technical investment to accommodate a law that’s still on uncertain legal ground.
How will advertisers react?
Tech platforms are having a hard enough time keeping advertisers happy, now that new privacy settings are preventing them from tracking users. How will brands feel knowing their shampoo ads are running right alongside violence and hate speech?
We’ve seen brands stand up to this kind of thing in the past. In 2020, civil rights groups led a mass advertiser protest of Facebook under the banner #StopHateForProfit. Other major advertisers ditched Google in 2017, after their ads started appearing on extremist videos. If anything goes on social media in Texas, will advertisers still want to spend their money there?
Should platforms wait to see what the Supreme Court does?
All of the options facing platforms in Texas right now are bad ones. Maybe the safest option is to simply stay the course, continue moderating content as if the Texas law doesn’t exist, risk the potential lawsuits in Texas and hope that the Supreme Court acts fast enough to fend them off.
That seems to be the posture the plaintiffs in the case are taking. “We are disappointed that the 5th Circuit’s split decision undermines First Amendment protections and creates a circuit split with the unanimous decision of the 11th Circuit,” Carl Szabo, NetChoice vice president and general counsel, said in a statement. “We remain convinced that when the U.S. Supreme Court hears one of our cases, it will uphold the First Amendment rights of websites, platforms and apps.”
That “when,” of course, is more like an “if.” But if history is any indication, this is precisely the fight at least some justices on the Supreme Court have been waiting for.
