Fifth Circuit Court of Appeals rules against Big Tech censorship

A new court decision is bad news for Big Tech.

Fox News reports that a federal court has just upheld a Texas law that looks to put a stop to Big Tech’s censorship of political viewpoints. 

The decision came from the Fifth Circuit Court of Appeals on Friday. But, before we get to that, let’s take a look at what is going on here.

H.B. 20

At issue in this lawsuit is House Bill 20, a bill that the Texas legislature passed and the state’s governor signed into law back in 2021.

“House Bill 20 prevents social media companies with more than 50 million monthly users from banning users simply based on their political viewpoints,” reads Texas Gov. Greg Abbott’s (R) webpage about the law.

The webpage continues:

The law also requires several consumer protection disclosures and processes related to content management on the social media sites to which the bill applies. These sites must disclose their content management and moderation policies and implement a complaint and appeals process for content they remove, providing a reason for the removal and a review of their decision. They also must review and remove illegal content within 48 hours. House Bill 20 also prohibits email service providers from impeding the transmission of email messages based on content.

The lawsuit

Big Tech — specifically NetChoice and the Computer & Communications Industry Association — responded by bringing a lawsuit against Texas challenging the constitutionality of H.B. 20.

Netchoice has made some rather unusual arguments, including that Big Tech has a First Amendment right to decide what kind of speech should be allowed on their platforms — in other words, a right to censor speech it doesn’t like.

Netchoice managed, in December, to get the U.S. District Court to rule in its favor, stopping the law from being implemented. From there the matter ended up at the 5th Circuit, which lifted the block. And, then it went to the U.S. Supreme Court, which, once again, blocked the law and sent it back to the 5th Circuit.

The latest

The 5th Circuit issued its latest ruling on Friday, ruling in Texas’s favor. The decision reads:

[The First] Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the court concludes.

What this decision means is that Texas can now implement H.B. 20, but whether it will or not is unclear, and that’s because the decision is likely to be appealed to the U.S. Supreme Court. If the appeal does happen, then this could end up being a significant First Amendment case regarding Big Tech censorship.