May 18, 2022

Last week, the 5th U.S. Circuit Court of Appeals reinstated a Texas law, HB 20, that forbids social media companies from banning users for their political positions and censoring posts for partisan slant. It also contains transparency provisions requiring regular updates and statistics on the companies’ censorship decisions.

The law renders large tech companies like Facebook and Twitter that engage in content moderation vulnerable to lawsuits not only from the Texas government, but also from social media users who feel slighted by the companies’ moderation decisions. Critics denounce the law for its ambiguous wording, which, they argue, grants excessive power to aggrieved plaintiffs while simultaneously stripping the companies of their own free speech.

“Social media platforms with the largest number of users are common carriers by virtue of their market dominance,” and they are “central forums for public debate and have enjoyed governmental support in the United States,” the law states.

HB 20 also requires social media platforms to disclose information about how they manage content and how they “curate and target content to users.”

The law requires social media companies to publish a transparency report twice a year detailing the number of instances social media platforms were alerted to illegal or policy-violating content, and their responses to it. As part of that clause, the companies are required to publish information on the number of times they took action on:

  • Content removal
  • Account suspension or removal
  • Content demonetization
  • Content “reprioritization”
  • Users’ appeals to the above infractions

“H.B. 20 prohibits the platforms from engaging in their own expression to label or comment on the expression they are now compelled to disseminate,” reads a lawsuit filed against Texas Attorney General Ken Paxton last September. “And in light of the statute’s vague operating provisions, every single editorial and operational choice platforms make could subject those companies to myriad lawsuits.”

A massive leak of internal documents from Facebook written about by The Wall Street Journal revealed content moderation and political bias are topics of frequent internal discussion at the tech giant.

“The documents reviewed by the Journal didn’t render a verdict on whether bias influences its decisions overall. They do show that employees and their bosses have hotly debated whether and how to restrain right-wing publishers, with more-senior employees often providing a check on agitation from the rank and file,” wrote Keach Hagey and Jeff Horwitz in the Journal last October.

HB 20 additionally obligates the platforms to have a complaint intake mechanism.

While HB 20 is still being batted around in the courts over its constitutionality, the appeals court ruled that the law will stand in the meantime. The decision to uphold the law has already been attacked by stakeholders on both sides of the political aisle. According to The Texas Tribune, the 5th Circuit Court is reputed to be one of the most conservative federal appeal courts in the U.S.

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Seth Smalley is a reporter at Poynter and the IFCN. Get in touch at or on Twitter @sethsalex.
Seth Smalley

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