A federal appeals court recently upheld a controversial Texas law limiting how Facebook, YouTube, Twitter, and other social media platforms can moderate their content. The companies argued that the new law violates their free speech rights by forcing them to host content they find abhorrent. The U.S. Court of Appeals for the Fifth Circuit disagreed, ruling the state is free to prevent social media platforms from removing or moderating content based on the viewpoint espoused.

HB 20 was signed into law by Texas Governor Greg Abbot in September 2021. The act declares that social media platforms are common carriers with a responsibility to leave open their “public forum” without “censorship.” The law, which applies to any social media platform or “interactive computer service” with at least 50 million monthly users, prohibits censorship based on “the viewpoint of the user” or the viewpoint expressed by a user. Platforms would have to publicly disclose their content moderation information as well as set up a complaint and appeal system for users. The law does make an exception for “unlawful expression, including expression that unlawfully harasses individuals or unlawfully incites violence,” which the platforms remain free to censor. The law also excludes from protection content that incites criminal activity or that relates to the sexual exploitation of children.

Users who have their content “illegally” removed per the law have a right of action to sue the platform for injunctive relief and legal fees. The act also grants the Texas Attorney General authority to bring an enforcement action. The law was passed in retaliation against alleged efforts to “silence conservative viewpoints and ideas,” despite the fact that there’s no evidence that large platforms have discriminated against conservative viewpoints. The platforms had begun removing misinformation regarding the 2020 election, hate speech, and other harmful content, but conservatives argue their efforts had gone too far.

HB 20 was originally struck down by a district court in Texas. On appeal, the Fifth Circuit reversed and found that the platforms’ First Amendment rights were not violated. According to the conservative panel of judges, the First Amendment guarantees the right to free speech but not the right to “muzzle speech”; the Texas law “does not chill speech; if anything, it chills censorship.”

The opinion, which gives the state power to regulate how a private party moderates speech on its own platform, flies in the face of decades of First Amendment jurisprudence. Social media platforms are run by private companies, not state agencies. Newspapers and magazines, for example, make content-moderation decisions on a daily basis; forcing a periodical to publish an article espousing opinions odious to their core principles would be an obvious First Amendment violation. The same consideration does not apply to online platforms, according to the Fifth Circuit.

Legal experts worry that tech companies will be forced to host hate speech, spam, pornography, and other content that falls short of deliberately violent or unlawful.“‘God Bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same,” argued the president of the Computer and Communications Industry Association, one of the tech trade groups involved in the challenge to the law.” “Little could be more Orwellian than the government purporting to protect speech by dictating what businesses must say.”

While the law in question applies only to platforms with at least 50 million monthly users, the Fifth Circuit’s opinion carries the potential to eviscerate First Amendment protections across a much wider area. The opinion opens the door for Texas and other states to enact similar laws affecting much smaller platforms that lack the resources to challenge the law or lawsuits permitted by such laws.