The Fifth Circuit ordered en banc rehearing Wednesday; here's an excerpt from the long panel opinion (Computer & Comm. Industry Ass'n v. Paxton), decided in July by Fifth Circuit Judges Dana Douglas and Patrick Higginbotham (I posted about the case then):
[1.] [Texas] H.B. 18 … imposes requirements on DSPs [Digital Service Providers]….
asserted
imposes → order → DSPs
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."
asserted
that → apply → 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.
asserted
that → exempt → 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."
asserted
that → exempt → suicide
"Harmful material" is defined with reference to its definition in the Texas Penal Code [to refer to obscene-as-to-minors sexually themed material]….
asserted
material → define → 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." …
uncertain
we → interpret → 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."
asserted
which → build → Section
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.
asserted
which → distinguish → statute
"[T]he nature of Section 230's protections," we observed, is "to protect a provider from speaker-liability stemming from the speech it hosts."
asserted
it → observe → speech
…
[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."
asserted
that → require → suicide
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.
asserted
It → provide → 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.
uncertain
Actions → enforce → Section
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.
asserted
this → frame → 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."
uncertain
claim → seek → section
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.
asserted
DSPs → hold → 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.
uncertain
Enforcement → trigger → 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.'
asserted
that → impose → content
"
As we observed in Free Speech Coalition, "publishers do not filter audiences; they filter content."
asserted
they → observe → 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….
asserted
requirement → address → content
[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.
uncertain
they → contend → 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 preemption on the grounds that the speaker may not be treated as a publisher.
uncertain
speaker → hesitate → publisher
Such a narrow view of Section 230 preemption would conflict with the statute's purpose "to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum."
asserted
view → conflict → minimum
It would also conflict with the text of § 230(c)(1), which, in spite of its often-discussed connection with specific instigating judicial decisions, "cannot be ignored": "Congress grabbed a bazooka to swat [a] fly."
asserted
Congress → conflict → fly
Given that "First Amendment values … drive the CDA," it should be no surprise if the two protections overlap.
asserted
protections → give → CDA
As we recognized in MySpace, drawing on the Fourth Circuit's influential Zeran decision, "[digital] service providers … subject to liability only for the publication of information, and not for its removal … would have a natural incentive simply to remove messages upon notification [of a possible harm,] whether the contents were [actually harmful] or not."
asserted
contents → recognize → harm
This would have an obvious "chilling effect on the freedom of Internet speech," implicating basic First Amendment freedoms as well as Section 230's more specific protections for internet speech.
asserted
This → have → speech
Viewing our Section 230 precedent together with Moody, the First Amendment protects the DSPs' editorial discretion from unconstitutional government regulation, and Section 230 protects those same decisions from civil liability based on third-party content.
asserted
Section → view → content
The argument that we must choose between them presents a false choice….
asserted
we → choose → choice
Because we hold that the monitoring and filtering requirement is preempted by Section 230 of the CDA, we do not reach the constitutional issues presented here.
asserted
we → hold → issues
Judge James Ho dissented as to that analysis:
[1.] Section 230 is triggered only when a provider is treated as the "publisher" or "speaker" of content provided by "another" information content provider.
asserted
provider → dissent → provider
So it does not apply when a provider is held liable for its own content—including its curation of third-party content….
[C]uration of third-party content is fundamentally different from publication of third-party content.
asserted
provider → apply → content
A digital service provider may choose to publish content created by third parties.
uncertain
provider → choose → parties
But the providers engage in their own speech when they curate that content.
asserted
they → engage → content
The Supreme Court has so held.
asserted
Court → hold → ?
[To quote Doe ex rel. Roe v. Snap, Inc. (2024) (Thomas, J., dissenting from denial of certiorari),] when "platforms organize users' content into newsfeeds or other compilations," they claim that they are "engage[d] in constitutionally protected speech."
uncertain
they → quote → speech
Yet "[w]hen it comes time for platforms to be held accountable for their websites, however, they argue the opposite."
asserted
they → come → opposite
"In the platforms' world, they are fully responsible for their websites when it results in constitutional protections, but the moment that responsibility could lead to liability, they can disclaim any obligations and enjoy greater protections from suit than nearly any other industry."
uncertain
they → result → industry
Consistent with Justice Thomas's observations, … we concluded that "section 230 does not provide a general immunity against all claims derived from third-party content."
uncertain
section → conclude → content
To the contrary, "providers of interactive computer services may be held liable for speech or conduct that is properly attributable to them, even if third-party speech exists somewhere upstream."
uncertain
speech → hold → them
…
[2.] The Securing Children Online through Parental Empowerment Act (SCOPE Act) … protects children from the dangers of social media.
asserted
Act → protect → media
…and 8 more, not listed.
The Aporia
