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Texas joins coalition supporting Florida ban on big tech censorship

Joining Texas in the brief are the states of Alabama, Alaska, Arizona, Arkansas, Kentucky, Mississippi, Missouri, Montana and South Carolina.

Updated: September 24, 2021 - 11:20pm

Texas Attorney General Paxton led a 10-state coalition in filing an amicus brief with the 11th Circuit Court of Appeals in support of Florida’s law that regulates censorship on Big Tech social media platforms.

The law, similar to one just passed by Texas, requires Big Tech platforms to consistently apply content-moderation practices and disclosures to affected users.

“The regulation of big tech censorship will inevitably suppress the ideas and beliefs of millions of Americans,” Paxton said. “I will defend the First Amendment and ensure that conservative voices have the right to be heard. Big Tech does not have the authority to police the expressions of people whose political viewpoint they simply disagree with.”

Joining Texas in the brief are the states of Alabama, Alaska, Arizona, Arkansas, Kentucky, Mississippi, Missouri, Montana and South Carolina.

The Texas bill, HB 20, was signed into law Sept. 2 by Gov. Greg Abbott at a ceremony with the bill’s authors, state Sen. Bryan Hughes and Rep. Briscoe Cain, in addition to state Sens. Charles Perry, Dawn Buckingham and Angela Paxton.

Abbott added legislation to address social media censorship to the second special legislative session agenda in August.

The new law prevents social media companies with more than 50 million monthly users from banning users based on their political views. The law also requires social media outlets to implement several consumer protection disclosures and processes related to content management on applicable sites. The social media sites in question must under the new law disclose their content management and moderation policies and create a complaint and appeals process. The new law also prohibits email service providers from impeding the transmission of email messages based on content.

"We will always defend the freedom of speech in Texas," Abbott said. "Social media websites have become our modern-day public square. They are a place for healthy public debate where information should be able to flow freely – but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas. That is wrong, and we will not allow it in Texas. I thank Senator Bryan Hughes, Representative Briscoe Cain, and the Texas Legislature for ensuring that House Bill 20 reached my desk during the second special session."

Florida’s SB 7072 – the law at issue in the appeal – contains similar provisions to Texas’ HB 20. Its neutrality provision requires social media platforms to “apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform.”

In May, Florida Gov. Ron DeSantis signed SB 7072 into law to protect free speech and allow Floridians being censored to sue two major social media companies: Facebook and Twitter. The law allows the state to fine the two platforms thousands of dollars every day they suspend or ban political candidates.

The bill only applied to large social media firms like Facebook and Twitter and contained an exemption for internet platforms “operated by a company that owns and operates a theme park or entertainment complex,” which critics have argued doesn’t apply to Disney or NBCUniversal because the companies are critical to the state’s tourism sector.

In June, District Judge Robert Hinkle issued a preliminary injunction blocking the state from enforcing nearly all parts of the law. He ruled, “Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. [The law] discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation’s size requirements and are or are not under common ownership with a theme park. The legislation does not survive strict scrutiny.”

But the coalition argues that Hinkle’s analysis is “riddled with errors. It veered off course from the outset by concluding that SB 7072 regulates speech, when that law instead regulates conduct that is unprotected by the First Amendment: social media platforms’ arbitrary application of their content moderation policies,” according to the brief.

The district court also mistook SB 7072 for a content-based law when it is content-neutral, they argue, and the court “completely ignored the States’ long-established compelling interest in ensuring that its citizens have access to the free flow of information and ideas.”

If the court’s “faulty analysis” is not corrected by the appeals court, the coalition argues, “the errant legal theories” the district court endorsed could be adopted by other courts around the country and jeopardize other states’ laws like HB 20.

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