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Texas argues Facebook and Twitter are a ‘modern-day public square’ in defense of censorship law

An iPhone displays the Facebook app in New Orleans.
Jenny Kane
AP Photo
An iPhone displays the Facebook app in New Orleans.

Lawyers for the social media companies say the law, HB 20, is an infringement on their First Amendment rights.

Lawyers for the state of Texas told a panel of federal judges on Monday that Facebook, Twitter and other social media platforms act as a “modern-day public square” and can thus be required to host objectionable speech under a state law banning “censorship” of certain viewpoints.

Lawyers for the state argued to the 5th U.S. Circuit Court of Appeals that the platforms have become akin to common carriers like the telephone and telegraph, and thus can be regulated with certain requirements.

In this case, those requirements have been set forth in House Bill 20, a state law banning social media platforms with more than 50 million monthly users from removing an account because of “viewpoint discrimination.”

“These social media platforms control the modern-day public square, but they abusively suppress speech in that square,” Ryan S. Baasch, Texas assistant solicitor general, told the judges.

Texas adopted HB 20 last year in the wake of several high-profile cases of conservative accounts being removed from social media — most notably former President Donald Trump.

Among other things, the law allows users banned from Facebook, Twitter or any other large social media platform to sue if they believe they were banned for their political views.

While under the law the state isn’t permitted to sue on its own behalf, the Texas attorney general may bring a suit on a banned user’s behalf if the person can't find another attorney.

Social media trade groups NetChoice and the Computer and Communications Industry Association challenged the law in September, arguing it would lead to the spread of misinformation and hate speech on their platforms and that it violates the platforms’ First Amendment rights.

A federal judge blocked the law in December just before it was set to take effect. The groups have also sued to successfully block a similar law in Florida.

But Texas later appealed, arguing that HB 20 limits not speech but conduct — what GOP lawmakers have called the deplatforming of conservative voices.

While those groups argued that they deserve the same constitutional protections as traditional media like newspapers and broadcast companies, Texas argued they function differently and do not have a right to editorial discretion, even when dealing with offensive content.

"The platform isn't sending a message to the world, ‘we approve of this content.' Nobody would reasonably believe that" Bash argued. "With newspapers and television broadcasters, when something passes through to the consumer, the newspaper or television broadcaster is putting their stamp of approval on it. I think that’s a very critical distinction."

Scott A. Keller, arguing on behalf of the social media groups, said that allowing Texas to dictate who’s allowed on their platforms could have broader First Amendment implications.

“Today we’re talking about the Texas Legislature, the same theory can be exported talking about the federal government, federal agencies, the state of California and the state of Massachusetts,” Keller said. “That’s not a road that this Court or this country should go down.”

One key disagreement between the two sides is over another federal law: Section 230 of the Communications Decency Act, which specifically allows websites from removing “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” third-party content.

Chris Marchese, counsel for industry trade Group NetChoice, told Houston Public Media last week he believed precedent is on their side.

"Our First Amendment arguments are so grounded in the case law, so grounded in what the Supreme Court has been saying for the last 20 years, that there's no court of appeals that would rule against us,” he said.