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Litigation News | 2023

Social Media Firms Not Permitted to Censor User Content

Jeffrey M. Marchese


  • Texas passed House Bill 20, which prohibits large social media platforms from censoring speech based on viewpoint.
  • The U.S. District Court initially issued a preliminary injunction, but the Court of Appeals later lifted the stay, allowing immediate enforcement of the statute.
  • The court of appeals held that the statute is constitutional as it protects other people's speech and regulates platforms' conduct, not their speech.
Social Media Firms Not Permitted to Censor User Content

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A federal court has upheld a state statute prohibiting social media companies from censoring user content based on the opinions of the user. The key issue was whether user content is published by the social media platform or by the user. In NetChoice LLC v. Ken Paxton, the court held that user content is published by the user, and it enforced the statute preventing content-based censorship of that user by the platform.

State Statute Prohibits Platform Censorship

The Texas legislature passed House Bill 20 which “generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker.” Trade association plaintiffs representing companies that operate social media platforms sued the Texas attorney general before the law went into effect, seeking injunctive relief. The U.S. District Court for the Western District of Texas initially issued a preliminary injunction enjoining enforcement of the statute.

The Court of Appeals for the Fifth Circuit granted a stay of the injunction, but subsequently reversed that decision and lifted the stay. Ultimately, in a split decision, the court of appeals reversed the grant of the injunction and held that platforms are not entitled to censor speech based on the user’s viewpoint, thereby allowing immediate enforcement of the statute.

The social media platforms challenged the constitutionality of sections 2 and 7 of House Bill 20. They challenged section 7 by arguing, among other things, that the statute is overbroad as applied to Texas users because it: (a) limits censorship of certain expression; and (b) provides a narrow remedial scheme and injunctive relief with costs and attorney fees if successful. Section 2 imposes certain disclosure and operational requirements on the platforms. The statute only allows the Texas attorney general to enforce section 2, and the attorney general can seek injunctive relief but not damages.

Protecting Free Speech and Statute Constitutionality

The First Amendment generally prevents government from enacting laws “abridging the freedom of speech, or of the press.” The court of appeals in NetChoice noted that “the First Amendment’s Speech and Press Clauses ‘also protect[s] the freedom to make well-intentioned statements of one’s thoughts, particularly on matters of public concern.’” It reasoned that the First Amendment provides “no support for the Platforms’ claimed right to censor;” and the statute “does not regulate the Platforms’ speech at all; it protects other people’s speech and regulates the Platforms’ conduct.” The court found that the statute “does not chill speech; if anything, it chills censorship.”

The NetChoice court observed that its decision was reinforced by 47 U.S.C. Section 230, which reflects Congress’s judgment that platforms are not “speaking” when they host other people’s speech. The court opined that its holding was also supported by the common carriers’ doctrine, which vested the Texas legislature with the power to prevent the platforms from discriminating against Texas users. Ultimately, the NetChoice court held that House Bill 20 was constitutional because it neither compelled nor obstructed the platforms’ own speech in any way and because the platforms were not newspapers that could censor user content.

Potential Resolution by the U.S. Supreme Court

The court in NetChoice recognized a federal circuit split concerning First Amendment issues regarding social media platforms, citing a decision from the Court of Appeals for the Eleventh Circuit, NetChoice, LLC et al v. Att’y Gen. of Fla. In May 2021, Florida enacted SB 7072, which sought to protect journalistic organizations and political candidates from censorship by large social media platforms. The Eleventh Circuit in NetChoice held that platforms challenging SB 7072 were entitled to a preliminary injunction against most of that statute’s provisions.

ABA Litigation Section leaders believe this circuit split may cause the U.S. Supreme Court to weight on the issue, but not all agree on how the rift will be resolved. “The U.S. Supreme Court could weigh in on the topic now that there is a split amongst the circuits,” predicts Hon. Carlos E. Moore, Grenada, MS, cochair of the Litigation Section's Civil Rights Committee, and “the Court would follow more in line with the Fifth Circuit versus the Eleventh Circuit,” he suggests.

Other Section leaders predict a different outcome. “The U.S. Supreme Court would likely be more in line with the Eleventh Circuit,” counters George H. Freeman, New York, NY, former cochair of the Section’s First Amendment Media Subcommittee of the Civil Rights Committee. “Social media platforms are similar to newspapers with the editorial decision on what to publish or post,” he adds.