Today, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Fifth Circuit to affirm a trial court order blocking enforcement of HB20, Texas’s new social media speech code. HB20 imposes punitive notice, appeal, and reporting requirements, as well as an unprecedented (and impossible) demand for viewpoint neutrality, on large social media websites. The law also declares that those websites are common carriers. TechFreedom’s brief takes aim at this faulty “common carriage” theory.

“HB20 is a First Amendment train wreck,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “Yet Texas continues to waste taxpayer money defending a law that, even if it were constitutional, would do a lot of harm. For Texas, ‘success’ means reinstating a law that would flood social media with hate speech, spam, and disinformation.”

“The theory that social media is like common carriage is a dead end for Texas,” Barthold continued. “Social media products are expressive, like newspapers and parades. They therefore fit squarely within a First Amendment framework, not a common carriage one. Unlike entities that are properly treated as common carriers—think of transporters of commodity goods, like railroads—social media function as editors. They are constantly making decisions about whether and how to allow, block, promote, demote, remove, label, or otherwise respond to content. Curation and editing of expression is, quite simply, antithetical to the concept of common carriage.”

“The Fifth Circuit should emphatically reject Texas’s appeal,” Barthold concluded, “and the states should drop their quixotic effort to regulate free expression on the Internet.”


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