Texas House Bill 20: First Amendment And Web-Based Platforms

Enacted by the Texas Legislature in September 2021, Texas House Bill 20 (HB20) is a law that prohibits large social media platforms from removing, moderating, or labeling posts from users in Texas based on specific viewpoints. This bill is one of the Republican-backed laws that are designed to prohibit censorship of political speech on social media. This law is controversial and has been challenged in other courts.

Texas HB20 is a law that applies to social media platforms available in the state of Texas that have at least 50 million monthly active users in the United States. The law defines applicable social media platforms as any public internet website or app that permits users to communicate with other users with the main purpose of posting information, images, messages, or comments. Under this law, social media platforms are prohibited from “censoring” the “expressions” of social media users in Texas based on “viewpoints” or the user’s geographical location in the state. This prohibition applies to moderation, removal, and labeling of posts with disclaimers or warnings. Social media platforms are only allowed to censor content if it is illegal or if the platform is specifically authorized to do so under federal law. 

Under HB20, social media platforms are also required to publicly disclose the moderation policies and algorithmic techniques that are used to determine which content can be provided to platform users, to publish a compliant acceptable use policy, and to publish biannual transparency reports that include specific details on all actions related to the user and content moderation.

According to HB20, social media companies can be sued if they fail to meet the bill’s requirements. This includes private lawsuits from citizens and groups and lawsuits filed by the Texas Attorney General. If HB20 goes into effect, tech companies could face legal action over their decisions to remove or moderate user content that the platform finds objectionable.

HB20 was signed into law by Texas Governor Greg Abbott on September 9, 2021. Shortly after the bill was enacted, NetChoice and the Computer & Communications Industry Association (CCIA) filed a lawsuit against Texas Attorney General Ken Paxton in federal court to block the bill from being implemented. On December 1, 2021, a federal district court approved a preliminary injunction that temporarily halted enforcement of the law. The court ruled that HB20 was unconstitutional on the basis that editorial discretion (like moderation by social media platforms) is protected by the First Amendment. The district court’s decision was appealed by the state of Texas. In May 2022, the Fifth Circuit Court of Appeals ruled in Texas’ favor and issued an order that granted a stay of the injunction, which allowed HB20 to go into effect.

Two days later, NetChoice and CCIA filed a petition with the Supreme Court, requesting that the court vacate the stay and reinstate the injunction. The two companies argued that the Fifth Circuit did not provide sufficient reason for their ruling, which denied them a “careful review and a meaningful decision.” On May 31, 2022, the Supreme Court agreed to vacate the stay, which put the injunction into effect again. On September 16, 2022, a Fifth Circuit panel ruled that the district court was wrong in issuing an injunction, claiming that censorship is not speech, and sent the case to the district court. This Fifth Circuit ruling created a circuit split with the Eleventh Circuit, which upheld an injunction against a similar law passed in Florida.

On October 13, 2022, the Fifth Circuit Court of Appeals granted a stay of the previous mandate that had allowed Texas HB20 to go into effect. The court agreed to suspend the enforcement of the new law after NetChoice and CCIA requested that the Supreme Court review the case. In a filing, these two tech groups noted that they were planning to ask the Supreme Court for a ruling on HB20 and that the state of Texas did not oppose the motion for a stay. 

The Supreme Court has already set a precedent that it would be willing to regulate social media platforms. In October, the Court agreed to hear two cases that could limit the scope of Section 230 of the Communications Decency Act, which protects the tech industry from certain types of liabilities.

The Eleventh Circuit ruling in favor of an injunction took place in a similar case called NetChoice v. Moody, which was filed in Florida. This lawsuit was filed in opposition to a law signed into law by Florida Governor Ron DeSantis in 2021, which outlined similar social media platform requirements as those found in Texas HB20. A Florida district judge approved a preliminary injunction against the law, which was appealed and upheld.

Founded in 2001, NetChoice is a lobbying group for big tech firms. Its members include some of the biggest tech companies in the United States, such as Google, Meta, Amazon, Paypal, eBay, AOL, and Yahoo. NetChoice had lobbying expenditures of $180,000 in 2021 and $220,000 in 2022, according to OpenSecrets.

A circuit split happens when two or more federal circuit courts of appeals issue conflicting rulings on the same legal matter. Legal scholars are generally split on whether circuit splits are beneficial or detrimental. The Supreme Court considers circuit splits (among other factors) when deciding whether or not to review a case. Some legal scholars believe that the Supreme Court is more likely to review a case to resolve a circuit split than for any other review reason. This means that the split between the Fifth Circuit and Eleventh Circuit could make it more likely for the Supreme Court to rule on HB20.

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