A Texas law banning major social media companies from removing political expression went into effect Wednesday, the first of its kind, posing complicated questions for major web platforms to comply with the rules.
The law, which applies to social media platforms in the United States with 50 million or more monthly active users, was passed last year by lawmakers questioning sites like Facebook and Twitter for removing posts from conservative publishers and personalities . The law allows users or the Attorney General’s Office to sue online platforms that remove posts for expressing a particular opinion.
In a brief ruling on Wednesday, the United States Court of Appeals for the Fifth Circuit, based in New Orleans, reversed an earlier ruling that prevented the state from enforcing the law. While tech industry groups challenging the law are likely to appeal the ruling, it creates uncertainty for major web platforms, which could now face lawsuits if they decide to remove content for violating their rules.
The surprising ruling comes amid a broader debate in Washington, statehouses and foreign capitals about how to balance free speech with safety online. Some members of Congress have proposed making online platforms liable if they disseminate discriminatory advertising or misinformation about public health. The European Union last month reached an agreement on rules to fight disinformation and increase transparency in how social media companies operate.
But conservatives have said the platforms are removing too much — not too little — content. Many of them hailed Elon Musk’s recent purchase of Twitter for promising fewer language restrictions. When the website banned President Donald J. Trump following the Jan. 6, 2021 attack on the Capitol, Republicans in statehouses proposed legislation to regulate how the companies enforce their policies.
“My office just secured another BIG WIN against BIG TECH,” Texas Attorney General and Republican Ken Paxton said in a tweet after the law was reinstated. A spokesman for Mr Paxton gave no details on how the Attorney General planned to enforce the law.
Florida last year passed a law that fines companies if they delete the accounts of some political candidates, but a federal judge prevented it from going into effect after tech industry groups sued. Texas’ bill takes a slightly different approach, stating that a platform “must not censor a user, a user’s expression, or a user’s ability to obtain another person’s expression” based on the user’s “point of view or another person”.
The law does not prevent platforms from removing content when notified by organizations that track child sexual exploitation online, or when it is “due to specific threats of violence” against someone based on the person’s race or other protected characteristics consists. The law also includes provisions that require online platforms to be transparent about their moderation policies.
When the Texas governor signed the state’s law into law in September, the tech industry sued to block it. It argued that the ban it imposed on platforms violated their own right to free speech to remove anything they deem objectionable.
The US District Court for the Western District of Texas stayed the law in December, saying it was unconstitutional. When the appeals court overturned the district court’s decision on Wednesday, it did not consider the merits of the law.
Carl Szabo, the vice president of NetChoice, a group funded by companies including Google, Meta and Twitter, which has sued the law, said: “We are evaluating our options and plan to challenge the order immediately.”
Facebook and Twitter spokesmen declined to comment on their plans.
Jameel Jaffer, the executive director of Columbia University’s Knight First Amendment Institute, which filed briefs challenging the laws in Texas and Florida, said it was “really disturbing” that the Texas Court of Appeals appeared to have bought the argument that the law was legally admissible may be .
“Accepting this theory means giving the government sweeping powers to distort or manipulate discourse online,” he said.
Critics of the law say they believe it will land platforms in trouble: leave behind disinformation and racist content, or face lawsuits across Texas. Daphne Keller, a former Google attorney who is now the director of the platform regulation program at Stanford University’s Cyber Policy Center, said that for a company to comply with the law “would drastically transform the service it provides.”
Ms Keller said companies might consider restricting access to their websites in Texas. However, it’s unclear if that move itself would break the law.
“If you’re the company, you’re probably thinking, ‘Can we do this?'” she said. “Then the question arises as to how that would be received by the public.”