The August 13, 2021 Trending Law Blog post discussed how the United States District court for the Northern District of Florida enjoined Florida from enforcing a law that targeted some, but not all, social media platforms based on the content of the speech hosted on their websites. On December 1, 2021, a federal district court in Western District of Texas, following arguments heard in NetChoice LLC v. Paxton, relied on the First Amendment and similarly enjoined Texas from enforcing a law which would have limited a large number of social media companies from moderating content on their websites.

The Texas statute – HB20 – prohibited certain social media companies from “censoring” users of a platform based on the users’ viewpoints. The statute, however, only applied to certain social media companies, i.e., ones with more than 50 million users and which allowed users to create accounts so they could communicate with others by posting information, images, comments or messages. The law also imposed disclosure and operational requirements on the social media platforms and allowed Texas users or people doing business in Texas to seek injunctive relief and attorneys’ fees if they believed their viewpoint speech had been improperly censored. The statute similarly allowed the Texas Attorney General (defendant Ken Paxton) to seek injunctive relief and attorneys’ fees for violations of the law. Two social media trade associations filed suit to prevent Texas from enforcing HB20 based on, among other grounds, the First Amendment.

After denying Texas’s motion to dismiss the action based on a lack of standing by plaintiffs, the district court focused its analysis on whether HB20 did, in fact, violate the First Amendment. The Honorable Robert Pitman, U.S.D.J. concluded that privately owned social media companies exercised editorial discretion over their websites which was protected by the First Amendment and violated the rights of plaintiffs’ members. The court reached this holding because: (1) HB20 compelled social media platforms to disseminate objectionable content and restricted their editorial discretion; (2) the law imposed disclosure and operational requirements on the platforms which were unduly burdensome; (3) the statute discriminated based on both content and the speaker (because some types of speech were exempt from the law and it only applied to certain social media companies rather than all of them); (4) HB20 contained terms that were unconstitutionally vague; and (5) the law failed under both strict and intermediate scrutiny analyses. Accordingly, the district court granted plaintiffs’ request for a preliminary injunction.

Like the Florida case, which is already on appeal to the Eleventh Circuit, the Texas case is also on appeal. On December 6, 2021, Texas filed a Notice of Interlocutory with the United States District Court for the Fifth Circuit, which accepted the Electronic Record on Appeal on December 15. With two courts of appeal now considering similar statutes which were struck down based on the First Amendment, it seems inevitable that these matters will eventually reach the Supreme Court. Stay tuned.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Rob Nussbaum

Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.

For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.