Democrats, Industry Oppose Texas Social Media Bill
Social media legislation advancing in Texas is flagrantly unconstitutional and will meet the same fate as a similar bill in Florida (see 2108310065), Texas Rep. Gene Wu (D) told us last week. One of the plan’s Republican authors said in an interview the legislation is a response to “ubiquitous” social media platforms that have too much sway over user accounts and reputations. Stakeholders expect litigation if this becomes law, as also occurred in Florida.
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HB-20 would prohibit larger platforms from blocking, deplatforming or otherwise discriminating against users based on viewpoint or location within Texas. The House passed the legislation 77-49 in a special session Aug. 30, with five Republicans against. The Senate passed an amended version 17-14 the next day with one Republican against. Democrats voted along party lines with both bills. The Senate removed a House provision prohibiting platforms from tagging content as “not safe for work,” violent or factually incorrect. The two sides will need to reconcile. Gov. Greg Abbott (R) is expected to sign if the bill passes both Republican-controlled chambers. The legislation would take effect 90 days after the end of the legislative session.
It's “openly and aggressively” unconstitutional based on the “exact wording” of the First Amendment, said Wu: “This is the government telling a private entity what they can and cannot say. The bill would quite literally force them to say things that they don’t want to say.” He accused Republicans of trying to show “loyalty” to former President Donald Trump leading up to contested primary races. “This legislation completely flies in the face of Republican ideals of limited government and noninterference with the free market,” he said: That's "why you had a handful of Republicans vote against it.” States don’t regulate interstate commerce, he added: That’s the federal government’s job.
“Big Tech is so big that it could undermine our First Amendment rights,” House Homeland Security Committee Chairman James White (R) told us. “We need to continue fostering a culture of freedom of speech.” White said he’s “all for” the free speech rights of social media companies, but a “ubiquitous” platform needs statutory guidance for content moderation appeal and disclosure. Large tech platforms shouldn’t have the ability to control the reputation of an individual or business, he said. On the potential for a legal challenge, White said his job is to legislate and for courts to decide the “constitutional mustering.” He added: “Tell me what other ubiquitous market participant can use their ubiquity to pick and choose winners and losers in the free market?”
Legislators should fully expect someone to bring a successful legal challenge and the same outcome as in Florida, said NetChoice Vice President Carl Szabo. HB-20 is “completely unconstitutional,” he said. “We enshrined in our founding document a prohibition on the government telling us what we can and what we cannot say and at the same time a prohibition on the government telling us what we must say. Compelled speech is the type of action you see from authoritarian regimes.”
The First Amendment protects companies from government punishment over editorial decisions, just as it “protects newspapers when they exercise editorial judgment in deciding what to print,” emailed University of Missouri law professor Lyrissa Lidsky. Social media companies are private, for-profit companies that “are not and do not claim to be simply neutral conduits for the speech of others, as common carriers are,” she added.
Platforms have a First Amendment right to “refuse to host users that promote suicide and self-harm, or that peddle racism and hate, for example,” said Computer & Communications Industry Association President Matt Schruers. “This bill disagrees, and would give foreign extremists trafficking in vicious propaganda a platform to spread lies that put Americans at risk.” Texas failed to learn from Florida’s judicial “thrashing,” and Texas’ law will “similarly be held unconstitutional,” said TechFreedom.