A Texas law prohibiting major social media companies from removing political speech became the first to take effect on Wednesday, posing complex questions for major web platforms about how to comply with the rules.
The law, which applies to social media platforms in the United States with 50 million or more monthly active users, was passed last year by lawmakers who took issue with sites like Facebook and Twitter removing their posts from conservative publishers and personalities. The law makes it possible for users or the state’s attorney general to sue online platforms that remove posts because they express a certain viewpoint.
In a short order Wednesday, the United States Court of Appeals for the Fifth Circuit, based in New Orleans, reversed an earlier ruling that stopped the state from enforcing the law. While tech industry groups are challenging the law to appeal, it creates uncertainty for major web platforms that can now face lawsuits when they decide to take down content for violating their rules.
The surprise ruling comes amid a broader debate in Washington, statehouses and foreign capitols about how to balance free expression with safety online. Some members of Congress have proposed making online platforms liable when they promote discriminatory ads or misinformation about public health. The European Union last month reached an agreement on rules meant to combat disinformation and increased transparency in how social media companies operate.
But conservatives have said that the platforms remove too much – rather than too little – content. Many of them cheered on Elon Musk’s recent purchase of Twitter because he has promised lighter restrictions on speech. When the site banned President Donald J. Trump after the Jan. 6, 2021, Attack on the Capitol, Republicans in statehouses proposed legislation to regulate how companies enforce their policies.
“My office just secured another BIG win against BIG TECH,” Ken Paxton, the Texas attorney general and a Republican, said in a tweet after the law was reinstated. A spokesman for Mr. Paxton did not provide details of how the attorney general planned to enforce the law.
Florida passed a bill last year that financed companies if they took down some of its political candidates, but a federal judge stopped it from taking effect after tech industry groups sued. Texas’ bill takes a slightly different approach, saying that a platform “may not censor a user, a user’s expression, or a user’s ability to receive that expression” based on the “viewpoint of the user or another person.”
The law does not stop content from taking down platforms when they are notified about organizations that track online sexual exploitation of children, or when it is based on a person’s race or other protected ability against “specific threats of violence.” The law also includes provisions that require online platforms to be transparent about their moderation policies.
When Texas’ governor signs the state’s bill into law in September, the tech industry sued to block it. It is argued that the prohibition placed it on platforms violated their own free speech right to remove anything they deem objectionable.
The United States District Court for the Western District of Texas stayed the law in December, saying it violated the Constitution. When the appeals court reversed Wednesday on the district court’s decision, it did not weigh in on the merits of the law.
“We are weighing our options and plans to appeal the order immediately,” said Carl Szabo, vice president of NetChoice, a group funded by companies including Google, Meta and Twitter that sued to block the law.
Spokesmen for Facebook and Twitter declined to comment on their plans.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, which filed briefs in Texas and Florida opposing lawsuits, said it was “really disturbing” that the appeals court had seemingly bought Texas’ argument that the law was legally permissible. General Chat Chat Lounge
“To accept that theory is to give the government sweeping power to distort or manipulate discourse online,” he said.
Critics of the law say they believe it will leave platforms in a bind: leave disinformation and racist content or face lawsuits across Texas. Daphne Keller, a former lawyer at Google who is now director of the Platform Regulation Program at Stanford University’s Cyber Policy Center, said a company’s compliance with the law would “dramatically change the service that they offer.”
Ms. Keller said companies could consider restricting access to their websites in Texas. But it is unclear if that move would violate the law itself.
“If you’re the companies, I’m sure you’re thinking about, ‘Could we do that?'” She said. “Then there’s the question about how that would play in the public eye.”