§ 230 Preempts Texas Mandates on Social Media Platforms, Fifth Circuit Holds by 2-1 Vote
Reason · RC · trust 41/100
An excerpt from the long opinion in Computer & Comm. Industry Ass'n v. Paxton , decided Friday by Fifth Circuit Judges Dana Douglas and Patrick Higginbotham:
[1.] [Texas] H.B. 18 ... imposes requirements on DSPs [Digital Service Providers].... With the exception of its age-verification requirement, H.B. 18 applies only to DSPs whose digital service "connects users in a manner that allows users to socially interact with other users on the digital service," "allows a user to create a public or semi-public profile for purposes of signing into and using the digital service," and "allows a user to create or post content that can be viewed by other users of the digital service," including via a message board, chat room, or other "landing page, video channel, or main feed that presents to a user content created and posted by other users."
{H.B. 18 exempts from its coverage state and local government websites, financial institutions, medical websites, small businesses, higher education websites, employee management software, school education software, and e-mail and direct messaging services that provide only those services. H.B. 18 also exempts digital services that "primarily function[ ] to provide a user with access to news, sports, commerce, or content primarily generated or selected by the [DSP]" and provide only incidental social functions.}
H.B. 18's monitoring and filtering requirement mandates covered DSPs to develop and implement a strategy to prevent known minors' exposure to "harmful material" and other content "that promotes, glorifies, or facilitates" "suicide, self-harm, or eating disorders"; "substance abuse"; "stalking, bullying, or harassment"; and "grooming, trafficking, child pornography, or other sexual exploitation or abuse." "Harmful material" is defined with reference to its definition in the Texas Penal Code [to refer to obscene-as-to-minors sexually themed material]....
[2.] Consistent with other courts of appeal, we have interpreted Section 230 to provide DSPs with "broad immunity" from "all claims stemming from their publication of information created by third parties." ... Building on Doe v. MySpace, Inc. (5th Cir. 2018), where we had previously held that Section 230 "shielded MySpace from negligence liability for publishing communications between a minor and an adult who later sexually assaulted her," in Free Speech Coalition, Inc. v. Paxton (5th Cir. 2024), we held that an age-verification requirement for pornographic websites was different, and not preempted, because it did not pertain to "immuniz[ing] web service providers from harm caused by unremoved speech on their website," which is "the point of Section 230."
We distinguished between liability "reliant on the harm done by third-party content," which is preempted by Section 230, and "liability purely based on whether plaintiffs comply with the statute," which is not. "[T]he nature of Section 230's protections," we observed, is "to protect a provider from speaker-liability stemming from the speech it hosts." ...
[T]he monitoring and filtering requirement requires covered DSPs to "implement a strategy" to prevent known minors' exposure to "harmful material"—that is, material obscene to minors as it is defined by Texas law—and other content "that promotes, glorifies, or facilitates" "suicide, self-harm, or eating disorders"; "substance abuse"; "stalking, bullying, or harassment"; and "grooming, trafficking, child pornography, or other sexual exploitation or abuse." It provides for enforcement for "violation[s]" by the Consumer Protection Division of the Attorney General's Office or by actions for a declaratory judgment or an injunction brought by the parent of a "known minor affected by" a violation.
Actions to enforce the monitoring and filtering requirement are claims stemming from DSPs' actions as publishers, that is, from their monitoring, screening, and deletion of content, and are thus squarely preempted by Section 230. Although H.B. 18's monitoring and filtering requirement is framed as a matter of affirmative obligations rather than direct penalties for published content, this is not conclusive under our precedent.
"[I]f the claim seeks to hold the defendant liable for 'deciding whether to publish, withdraw, postpone, or alter content[,]' the claim treats the defendant as a publisher or speaker and is barred by section 230." The requirement would hold DSPs liable for their failure to adhere to state-set publication standards, not only "treat[ing] [them] as ... publisher[s] or speaker[s]," but treating them as publishers subject to sweeping state controls. Enforcement is triggered by failures to adequately filter according to a complex array of prescribed practices, as ascertained by the Texas Attorney General's Office and by the parents of minors "affected"—in other words, harmed—by these failures. The monitoring and filtering requirement thus imposes a "duty" that "'would necessarily require an internet company to monitor[, alter, or remove] third-party content.'"
As we observed in Free Speech Coalition , "publishers do not filter audiences; they filter content." Unlike the age-verification requirement we addressed in that case, H.B. 18's monitoring and filtering requirement is all about filtering content, and is thus preempted....
[3.] The Attorney General contends that the Supreme Court's recent recognition of the DSPs' own free speech interest in curating the content they display in Moody v. NetChoice, LLC (2024) means that Section 230's broadly-interpreted rule against "treat[ing]" the DSPs "as the publisher or speaker of any information provided by another information content provider" does not apply to claims that simply seek to hold social media platforms liable for their own speech, such as the methods they use to curate content.
We hesitate to read Moody to render Section 230 so easily avoidable, as if speech could not be both protected by the First Amendment and subject to…
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