5th Circuit Upholds Texas' Controversial Online Platform Liability Law

5th Circuit Upholds Texas' Controversial Online Platform Liability Law

AUSTIN, Texas — The Fifth Circuit Court of Appeals today upheld a controversial Texas law prohibiting social media platforms from “censoring speech based on the viewpoint of its speaker,” in a decision that ignored long-standing precedent that First Amendment protections prohibit only censorship by the government, not by private companies.

According to the court’s decision, even though platforms contend that “the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances,” the majority-conservative justices on the Fifth Circuit bench “reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”

“Because the district court held otherwise,” the judges declared, “we reverse its injunction and remand for further proceedings.”

The ideologically-worded decision also included the judges’ opinion that “the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to ‘the freedom of speech.’ But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”

The implications of the platforms’ argument, they continued, “are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone.”

A Republican Law Upheld by Conservative Judges

The Republican-backed state law, HB 20, would make social media platforms liable for moderating content based on what the law defines as “viewpoints.” It was drafted with the support of Texas governor Greg Abbott as an answer to conservative complaints about supposed “liberal bias” in platform moderation, including the lifetime Twitter ban of former President Donald Trump.

The law has been subject to a back-and-forth judicial process. As XBIZ reported, back in May, the U.S. Supreme Court temporarily blocked HB 20, shortly after a Fifth Circuit three-judge appeals panel ruled that the law could go into effect “immediately” — in turn staying a previous district court injunction that had put enforcement of the law on hold.

The Fifth Circuit panel decision in May was communicated without explanation as to the court’s reasoning and with two of the judges remaining anonymous. At the time, tech news site Protocol reported that, during the hearings, “the jurists appeared to struggle with basic tech concepts, including whether Twitter counts as a website.” 

That decision, ratified today, was seen “a win for conservative critics of the current interpretation of tech law, which underlies the operations of social media platforms such as Twitter and Facebook,” Protocol continued.

Industry Lawyer Weighs In

"It appears the Fifth Circuit got the First Amendment analysis alarmingly wrong," said industry attorney and First Amendment expert Lawrence Walters, of the Walters Law Group. "It deems the platforms’ actions in hosting and facilitating speech to be 'conduct,' not speech, in disregard of decades of precedent recognizing the First Amendment rights of platforms to engage in their own speech through editorial decisions."

Walters added that he suspects "the decision will be reversed if taken up by the Supreme Court."

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

AEBN Publishes Popular Searches by Country for August, September

AEBN has released the list of popular searches from its straight and gay theaters by country in August and September.

AV in Focus: A Guide to Unlocking Compliance With Clarity

The age verification era isn’t coming — it’s here. Laws are already on the books in numerous U.S. states, as well as in the U.K., France and beyond.

Canadian Privacy Commissioner Endorses National AV Bill

Philippe Dufresne, privacy commissioner of Canada, has voiced support for a bill that would impose fines of up to $500,000 on adult sites that do not implement age verification for Canadian viewers.

Ricky Johnson Launches 'Ricky's Resort' Through YourPaysitePartner

Ricky's Room studio honcho Ricky Johnson has launched his latest site, RickysResort.com, through YourPaysitePartner (YPP).

Industry Attorney Paul Cambria Retires After 50 Years of Practicing Law

After more than a half-century in practice, during which he provided the defense in some of the adult industry's most notable legal cases, attorney Paul Cambria has retired.

2026 XMA Nominations Party Set for Nov. 19 in Hollywood

The 2026 XMA nominations reveal party will take place at Keys on the Sunset Strip on Wednesday, Nov. 19, with red-carpet arrivals starting at 8 p.m.

New VR Membership Site 'DeepInSex.com' Launches

The new 8K VR membership site DeepInSex has officially launched.

NATS Launches Integrated Content Management System

Too Much Media (TMM) has rolled out an integrated, no-charge Content Management System (CMS) to its NATS platform.

AEBN Reveals Avery Lust as Top Trans Star for Q3 of 2025

AEBN has published its top trans stars list for the third quarter of 2025, with Avery Lust landing atop the leaderboard.

FSC: California's Device-Based AV Law Does Not Apply to Adult

The Free Speech Coalition (FSC) put out an advisory today explaining that California's new device-based age verification law does not apply to adult websites.

Show More