5th Circuit blocks Texas law requiring websites to filter "harmful" speech

In Friday’s ruling, judges noted the difference between the age-verification requirement in the porn website case and the content-filtering rule in the new case. “Unlike the age-verification requirement we addressed in that case, [the SCOPE Act’s] monitoring and filtering requirement is all about filtering content, and is thus preempted,” they found. The 5th Circuit and other appeals courts “have interpreted Section 230 to provide DSPs with ‘broad immunity’ from ‘all claims stemming from their publication of information created by third parties,’” the 5th Circuit panel said. The state law required websites to prevent known minors’ exposure to material defined as obscene under Texas law, and other content “that promotes, glorifies, or facilitates” suicide, self-harm, eating disorders, substance abuse, stalking, bullying, harassment, grooming, trafficking, and “child pornography, or other sexual exploitation or abuse.” Paxton argued that the Texas law imposes no liability for harms from the content they host. The law is not preempted because it “imposes compliance duties, not publisher liability,” and aligns with the child-protection goals of Section 230, he argued. Students Engaged in Advancing Texas (SEAT) alleged that students’ speech would be censored or that they would self-censor because of the law. Judges noted that the law “does not apply directly to them” and had not yet been enforced against platform operators when the students filed the complaint. “In other words, the SEAT plaintiffs claim an injury in fact based on predicted censorship or a present chill, arising from someone else’s predictable response to the challenged law,” judges wrote. They decided that the group’s “fears of censorship based on indirect regulation are insufficient to support standing for a pre-enforcement challenge.” The judges on the panel were Reagan appointee Patrick Higginbotham, Trump appointee James Ho, and Biden appointee Dana Douglas. While the three judges unanimously ruled against SEAT, Ho dissented from the decision to block the monitoring and filtering rules. “The SCOPE Act isn’t preempted by section 230 for one simple reason: Because it regulates curation, not publication—first-party speech, not third-party speech,” Ho wrote. “So I would vacate the injunction in its entirety. Because the panel majority vacates the injunction only in part, I concur in the judgment in part and dissent in part.” Ho contended that curation “is speech that is distinct from the underlying content.” While posts that appear on a child’s social media feed are the speech of third parties, “the algorithm that social media companies design to curate that feed constitute the first-party speech of the companies,” Ho wrote. Ho cited Supreme Court Justice Clarence Thomas, saying that Thomas “suggested that social-media platforms are deploying the distinction between curation and third-party content inconsistently—and self-servingly—in an effort to turn § 230 into ‘a get-out-of-jail free card.’” The 5th Circuit majority acknowledged Thomas’ “get-out-of-jail free” comment but said its ruling “does no more than straightforwardly apply our court’s precedents.” The panel majority said the First Amendment protects providers’ “editorial discretion from unconstitutional government regulation, and Section 230 protects those same decisions from civil liability based on third-party content. The argument that we must choose between them presents a false choice.”