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Social Media Sites Face Worldwide Upheaval, Supreme Court Told

May 14, 2022, 1:20 AM

Twitter Inc. and Facebook will be compelled to allow the dissemination of Russian propaganda as well as neo-Nazi and Ku Klux Klan screeds denying the Holocaust unless a Texas social media law is blocked, tech groups representing the companies told the U.S. Supreme Court.

The emergency filing Friday seeking to block the Texas law -- HB20 -- comes two days after a divided federal appeals court let it take effect while a legal challenge filed by the tech groups goes forward. The New Orleans-based 5th US Circuit Court of Appeals’ order, which came without explanation, put on hold a temporary injunction a trial judge issued in December.

“The 5th Circuit short-circuited the normal review process, authorizing Texas to inflict a massive change to leading global websites,” the tech groups said in the filing. “The cost of revamping the websites’ operations would undo years of work and billions of dollars spent on developing some platforms’ current systems.”

The request is addressed to Justice Samuel Alito, who oversees the 5th Circuit. He can act on the groups’ request himself, or refer the matter to the full court for consideration.

The industry groups, NetChoice and the Computer and Communication Industry Association, represent companies including Twitter, Facebook parent Meta Platforms Inc. and Google parent Alphabet Inc. Platforms with more than 50 million users, like Twitter and Facebook, fall under the law’s criteria.

The trade groups claim the law by hosting extremist views they risk boycotts from advertisers not wanting to be associated with such content.

“In the past, YouTube and Facebook ‘lost millions of dollars in advertising revenue’ from advertisers who did not want their advertisements next to ‘extremist content and hate speech,”’ the groups said in the filing.

Texas Governor Greg Abbott and other Republicans argue the law is needed to protect conservative viewpoints from being silenced.

The law “is an assault on the First Amendment -- and we remain confident the courts will strike it down as unconstitutional,” NetChoice general counsel Carl Szabo said in a statement.

US District Judge Robert Pitman in Austin issued a preliminary injunction barring enforcement of key provisions of the law while the pair of trade groups proceeded with their lawsuit. The judge, a Barack Obama appointee, determined the groups are likely to succeed on their claim that social media platforms have a First Amendment right to moderate content.

The lower court rejected the state’s argument that platforms don’t get such protections because they’re not newspapers and that artificial intelligence is sometimes used to make moderating decisions. Pitman said in his December ruling that the editorial discretion at social media platform doesn’t “fit neatly with our 20th Century vision of a newspaper editor hand-selecting an article to publish.”

“It is indeed new, and exciting -- or frightening, depending on who you ask -- that algorithms do some of the work that a newspaper publisher previously did, but the core question is still whether a private company exercises editorial discretion over the dissemination of content, not the exact process used,” Pitman wrote.

Read more: Texas Law Targeting Facebook, Twitter Put on Hold By Judge

The Supreme Court has a scant track record on cases involving social media and content moderation, although Justice Clarence Thomas suggested last year that the government might constitutionally be able to limit Twitter’s ability to ban users.

A different federal appeals court, the Atlanta-based 11th US Circuit Court of Appeals, is considering a similar Florida law.

The case is NetChoice v. Paxton, 21-51178, 5th US Circuit Court of Appeals (New Orleans).

--With assistance from Erik Larson.

To contact the reporters on this story:
Alicia Diaz in Washington at adiaz243@bloomberg.net;
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net;
Tina Davis at tinadavis@bloomberg.net

Steve Stroth, Joe Schneider

© 2022 Bloomberg L.P. All rights reserved. Used with permission.