In December, a U.S. District Court judge granted a preliminary injunction blocking the law, ruling it violated the social network’s First Amendment right to censor user submissions. Texas Attorney General Ken Paxton appealed the injunction to the U.S. Court of Appeals for the Fifth Circuit, and a three-judge panel issued a ruling Wednesday suspending the preliminary injunction.
The ruling did not explain the judge’s reasoning. “The decision grants appellant’s motion to suspend preliminary injunction pending appeal,” the ruling said. The panel ruled unanimously, but did not say how each judge voted.
Corbin Barthold, an internet policy adviser at the libertarian think tank TechFreedom, said the ruling was “extremely radical” and the company filed a brief in the court case. “Social media companies now face the prospect of liability for making distinctions based on ‘views.’ (For example, treating pro-ISIS content differently than anti-ISIS content.) But there are many other difficulties in applying this law. No one– Whether it’s lawyers, judges, experts in the field, or even the law’s own sponsors — don’t know what it’s like to comply with this law,” Bartold said.
in a tweet, Paxton called the ruling a “major victory for BIG TECH,” adding, “I look forward to continuing to defend the constitutionality of HB 20.” State law states that “social media platforms may not make decisions based on the ‘views’ of users.” Users conduct censorship and define “censorship” as “blocking, banning, removing, de-monetizing, de-promoting, restricting, denying equal access or visibility, or otherwise discriminatory expression. The law states that the Texas attorney general or users can sue social media platforms that violate the ban and receive injunctive relief and reimbursement of court costs.
Judges “Fighting with Fundamental Technical Concepts”
Oral debates were held on Monday this week and the judges “appeared to be confused by the underlying technical concepts,” Protocol reported. The judges were skeptical of arguments made by tech industry group NetChoice and the Computer and Communications and Industries Association (CCIA), which sued Texas to block the law. One “judge thinks Twitter isn’t even a website, and another wonders whether phone companies have a First Amendment right to get people to give up their service,” Protocol wrote.
“Your client is an internet provider,” Judge Edith Jones reportedly told NetChoice and CCIA attorneys. “They’re not websites.” The members of these two groups are actually almost exclusively websites and online services, not internet service providers — see NetChoice members here and CCIA members here. Amazon, eBay, Facebook, Google, Twitter and Yahoo are all members of both groups.
At another point in the hearing, “Judge Andrew Oldham suggested that, if the technology platform succeeds, it would allow the phone company to activate subscribers,” Protocol reported. “In your theory, can Verizon decide that they’ll eavesdrop on every call … and when they hear speech they don’t like, they’ll terminate the call?” Oldham asked.
Phone companies are classified as public carriers and regulated by the Federal Communications Commission. Although Supreme Court Justice Clarence Thomas has argued that digital platforms can be regulated as public operators, such designations have not yet been applied to websites.
CNN technology reporter Brian Fung also detailed the confusion of the 5th Circuit judge. twitter thread. Oldham called Twitter’s First Amendment right to ban certain types of speech “extraordinary,” even though First Amendment free speech guarantees are for Congress, not private companies. According to Fung, the tech group’s attorney, Scott Keller, noted that “when it comes to private entities, the government cannot dictate what they must and cannot broadcast”.