Texas claims victory in censorship fight

A US appeals court has cleared the way for Texas to begin enforcing a landmark anti-censorship law, ruling that Twitter, Facebook and other social media giants don’t have a constitutional right to silence opinions that they find objectionable.

The Fifth Circuit Court of Appeals in New Orleans issued its ruling on Friday, shooting down what it called an “odd inversion of the First Amendment” by Silicon Valley trade groups, who argued that by barring social media companies from censoring objectionable views, Texas infringed on their freedom of speech.

“The platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech,” the three-judge panel said in its ruling. The implications of that claim are “staggering,” the judges added, inasmuch as it would mean that email providers, mobile-phone carriers and banks could cancel the accounts of anyone who sent a message, made a phone call or donated money in support of a “disfavored” political party, candidate or business.

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“Today, we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the judges said, noting that a platform could obtain a dominant market position by billing itself as open to everyone – as Twitter did by claiming to be “the free speech wing of the free speech party” – then turn around and dictate the conversation as “the monopolist of the modern public square.”

HB20, which prohibits platforms with more than 50 million users from censoring content posted by residents of the state based on viewpoint, marks one of the boldest efforts by Republican-controlled states to push back against Big Tech’s alleged anti-conservative bias. Texas had argued that Silicon Valley went so far as to muzzle federal elected officials – such as President Donald Trump – and even censored a congressional hearing that featured disfavored viewpoints.

Rather than directly responding to such concerns, the platforms argued that the law would prohibit them from censoring “pro-Nazi speech, terrorist propaganda and Holocaust denial.” The appellate court described such claims as “fanciful hypotheticals” and said the Texas law expressly allows the companies to censor any speech that incites criminal activity or makes specific threats.

Texas Attorney General Ken Paxton called Friday’s ruling a “massive victory for the constitution and free speech.”

Silicon Valley trade groups have vowed to appeal to the US Supreme Court, which has previously refused to allow HB20 to go into effect until a lower court had ruled on the merits of the case – which the Fifth Circuit just did.