WASHINGTON, D.C.—The Electronic Frontier Foundation (EFF) today urged the U.S. Supreme Court to halt enforcement of Texas’ constitutionally questionable social media law, which allows the state to dictate what speech platforms must publish and may lead to more, not less, censorship of user expression as platforms face a storm of lawsuits.

EFF,  joined by the Center for Democracy and Technology, the National Coalition Against Censorship, R Street Institute, the Wikimedia Foundation, and the Woodhull Freedom Foundation, said in an amicus brief filed today that the U.S. Court of Appeals for the Fifth Circuit erred last week when it lifted, without explanation, an injunction barring enforcement of the law. The order was put in place by a district court that found the law violated platforms’ First Amendment rights to curate content on their sites as they see fit.

Texas HB 20 prohibits Twitter, Facebook, and other big social media platforms from “censor[ing] a user, a users’ expression or a users’ ability to receive the expression of another person” based on the speaker’s viewpoint, whether expressed on or off the site, which covers nearly all common content moderation practices. It allows Texas residents or the state attorney general to sue platforms for any kind of negative treatment to a user or a post, including take down and down-ranking posts, and suspending, shadowing, or canceling accounts.

The Supreme Court must consider whether the district court’s order was in the public interest and whether it correctly applied accepted standards. EFF argues that the Fifth Circuit’s ruling is wrong because what it defines as censorship are well-established practices designed to serve users’ interests. Users are best served when they can choose among social media platforms with different editorial policies. While content moderation at scale is difficult to get right, it blocks content that some users don’t want to see, like personal abuse and harassment, hateful speech, promotion of suicide and self-harm, and glorification of Nazi ideology.

Content moderation practices that can be construed as viewpoint-based, which is virtually all of them, are barred under HB 20, so platforms will have to drop or alter them in ways that harm users’ interests.

“Almost any decision they make is going to be perceived as a response to someone’s viewpoint,” said EFF Civil Liberties Director David Greene. “This will lead to a flood of lawsuits before the court has even ruled on the law’s constitutionality.”

“Some platforms may stop moderating and allow abusive speech back on their sites. And others may take down even more speech to try to defeat the impression that they are being biased. Either way, internet users, and particularly vulnerable and marginalized speakers, will suffer,” Greene said.

Tech industry groups NetChoice  and the Computer and Communications Industry Association (CCIA) sued Texas last year to block the law. The plaintiffs today filed an emergency application with the Supreme Court asking justices to overturn the appeals court ruling. 

For the brief:

SCOTUS Docket for NetChoice v. Paxton