by Shannon Bond
Texas’s new social media law would force sites like Facebook, YouTube and Twitter to carry Russian propaganda, posts promoting eating disorders and racist screeds such as the one thought to be posted online by the gunman who allegedly killed 10 people in a Buffalo, N.Y., grocery store last weekend, according to tech industry groups that are trying to squash it in court.
That is not, of course, how the Texas Republicans who back the law, passed last year, see it. Republican lawmakers say it will stop big social media platforms from removing posts or banning users based on their political viewpoints. It’s based in long-standing right-wing accusations that Silicon Valley companies censor conservatives — claims the tech companies deny.
In December, a federal judge stopped the law from taking effect while trade groups representing Facebook, Google and other tech platforms challenged its constitutionality. Then last week, the Fifth Circuit Court of Appeals in New Orleans overruled the lower court, allowing the law to be enforced. Now the tech groups have asked the U.S. Supreme Court for an emergency ruling to block the law. That ruling could come as soon as this week.
What does the law do?
Tech companies have tightened their rules about what people can post to reduce the spread of false and potentially harmful misinformation, whether about voting, COVID, the war in Ukraine or online abuse and harassment.
The Texas law takes aim squarely at those content moderation practices. It allows social media users to sue major social platforms like Facebook, YouTube and Twitter if they think they’ve been banned or their posts have been taken down because of their political views.
“Once these businesses became ‘dominant digital platforms,’ they began to deny access to their services based on their customers’ viewpoints,” Texas Attorney General Ken Paxton argued in a filing on Wednesday. It cited as one example Facebook’s ban on claims the coronavirus was man-made, a policy the company put into place in February 2021 but reversed months later.
The platforms’ policies have been the subject of increasing scrutiny. The Texas law closely resembles one in Florida, now stayed while a lawsuit works its way through the courts. A Michigan lawmaker has introduced similar legislation. Even Tesla CEO Elon Musk has said part of his motivation for buying Twitter is to rein in what he sees as excessive rules.
What’s wrong with letting people sue if they believe they’ve been treated unfairly?
Opponents warn the Texas law would prevent platforms from removing content that, while not illegal, may be harmful.
On a conference call with reporters on Wednesday, Adam Kovacevich, CEO of the tech lobbying group Chamber of Progress, referred to the document allegedly posted by the Buffalo gunman, which most tech platforms have blocked in the wake of the deadly shooting.
“What’s clear in the wake of this tragedy is that we must be doing everything in our power to stop white supremacist ideologies like the replacement theory from further radicalizing Americans,” Kovacevich said. “But that is in direct conflict with this Texas law, which explicitly prevents social media platforms from taking down user content even when it promotes racism or terrorism.”
Moreover, the industry argues that the law violates the First Amendment by forcing social networks to host content to which they object.
It “strips private online businesses of their speech rights, forbids them from making constitutionally protected editorial decisions, and forces them to publish and promote objectionable content,” said Chris Marchese of NetChoice, one of the industry groups challenging the law. “Left standing, Texas HB 20 will turn the First Amendment on its head — to violate free speech, the government need only claim to be ‘protecting’ it.”
Civil rights groups, which often complain social networks don’t do enough to stop the spread of dangerous content, also are urging the Supreme Court to put the law on hold.
If allowed to remain in effect, “chaos will ensue online with disastrous and irreparable consequences,” said a supporting brief from 19 groups including the NAACP and the Anti-Defamation League.
The law also would put the tech companies into a legally fraught situation, given speech laws in other countries, such as Germany’s ban on Holocaust denial and the display of Nazi symbols, the brief argued.
How does Texas defend the law?
Texas urged the Supreme Court to keep the law in effect in its Wednesday filing, saying the law protects free speech of people who would otherwise be censored.
The law is “designed to guarantee all Texans equal access to the ‘modern public square,’ Texas Attorney General Ken Paxton wrote. He said Texas considers the social media companies common carriers — “the twenty-first century descendants of telegraph and telephone companies” — and therefore subject to government regulations aimed at promoting communications.
Texas also rejected opponents’ concerns that the law would force platforms to host objectionable and harmful content.
“These predictions are unfounded,” Paxton wrote. The law “allows the platforms to remove content: they merely must do so on a viewpoint-neutral basis,” such as by creating rules against spam or pornography, he wrote. The bill also includes an exception for removing content that’s illegal or incites violence, he said.
What could the Supreme Court do?
The tech groups appealed to Justice Samuel Alito for the emergency ruling because he oversees the Fifth Circuit Court of Appeals. Alito could decide himself, or send the question to the full court.