A Texas law that purports to restrict the moderation decisions of social media platforms was scheduled to take effect yesterday. That did not happen, because the day before a federal judge in Austin issued a preliminary injunction blocking enforcement of the law, which he said clearly violates the First Amendment—something that Gov. Greg Abbott and the many other Republicans who supported the law should have recognized long before it was challenged in court.
"Too many social media sites silence conservative speech and ideas and trample free speech," Abbott complained on one of those social media sites in March, explaining why he wants to constrain their decisions. "Our country's public square has become increasingly controlled by a few powerful companies that have proved to be flawed arbiters of constructive dialogue," he said in a September 22 Washington Post op-ed piece. He argues that H.B. 20, which he signed into law on September 9, "protects Texans from wrongful censorship" and thereby upholds their "first amendment rights."
To the contrary, U.S. District Judge Robert Pitman says in his decision granting a preliminary injunction against the law, "HB 20's prohibitions on 'censorship' and constraints on how social media platforms disseminate content violate the First Amendment." That's because the First Amendment protects the right of privately operated platforms like Facebook, Twitter, and YouTube to decide for themselves what sort of speech they want to host.
Pitman was responding to a lawsuit that two trade associations, NetChoice and the Computer & Communications Industry Association, filed in September. They argued that H.B. 20 unconstitutionally interfered with their members' editorial discretion. Texas simultaneously argued that Facebook et al. don't really exercise editorial discretion and complained about the way they use it.
H.B. 20 would have made it illegal for "social media platforms" to "censor" content based on the "viewpoint" of the author or the post. It defines "social media platforms" to exclude services with fewer than 50 million active monthly users, meaning the law does not apply to upstart alternatives such as Parler, Gab, and Rumble. The definition also excludes websites that "primarily" offer "news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider," so H.B. 20 does not apply to mainstream (or alternative) news outlets even when they host reader comments.
The law defines "censor" to include any effort to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression." It makes a few exceptions: Platforms are allowed to suppress "expression that directly incites criminal activity," "specific threats of violence" that target people based on their membership in certain protected categories, and content that "is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment."
Otherwise, the law's reach is vast. As the plaintiffs in this case noted, H.B. 20 "would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation."
H.B. 20 authorizes any Texan or anyone doing business in Texas who "shares or receives expression in this state" to seek injunctions against alleged violations of the law. It also authorizes the state's attorney general to sue platforms for "a violation or a potential violation." In either case, the plaintiff is entitled to recover attorney's fees.
Evaluating the constitutionality of this scheme, Pitman notes that "social media platforms have a First Amendment right to moderate content disseminated on their platforms." He cites three Supreme Court decisions in support of that conclusion.
In the 1974 case Miami Herald Publishing Company v. Tornillo, the Court held that a Florida law giving political candidates a "right of reply" to published criticism was unconstitutional. In the 1986 case Pacific Gas & Electric v. Public Utilities Commission of California, the Court said California could not force a utility company to distribute a third-party newsletter in envelopes used for bills. And in the 1995 case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, the Court upheld a private association's right to exclude a gay rights group's float from a St. Patrick's Day parade. Pitman also cites Reno v. American Civil Liberties Union, a 1997 case in which the Supreme Court made it clear that the First Amendment fully applies to the internet.
"The Supreme Court's holdings in Tornillo, Hurley, and PG&E," Pitman says, "stand for the general proposition that private companies that use editorial judgment to choose whether to publish content—and, if they do publish content, use editorial judgment to choose what they want to publish—cannot be compelled by the government to publish other content. That proposition has repeatedly been recognized by courts."
Are platforms like Facebook, Twitter, and YouTube exercising "editorial judgment" when they decide to label, block, or limit access to certain messages? Pitman thinks they clearly are.
Pitman rejects the state's argument that social media platforms should be treated as "common carriers" like broadband providers or telephone companies. "Unlike broadband providers and telephone companies," he notes, "social media platforms 'are not engaged in indiscriminate, neutral transmission of any and all users' speech.' User-generated content on social media platforms is screened and sometimes moderated or curated." That is true, to one extent or another, of every social media platform, including the alternative services that Texas chose to exempt from H.B. 20, and it is precisely those moderation and curation decisions to which politicians like Abbott object.
"Making those decisions entails some level of editorial discretion…even if portions of those tasks are carried out by software code," Pitman writes. "While this Court acknowledges that a social media platform's editorial discretion does not fit neatly with our 20th Century vision of a newspaper editor hand-selecting an article to publish, focusing on whether a human or AI makes those decisions is a distraction. It is indeed new and exciting—or frightening, depending on who you ask—that algorithms do some of the work that a newspaper publisher previously did, but the core question is still whether a private company exercises editorial discretion over the dissemination of content, not the exact process used."
In addition to directly interfering with editorial discretion, Pitman says, H.B. 20 would have a chilling effect on the exercise of First Amendment rights because social media companies couldn't be sure which decisions would prompt the lawsuits it authorizes. He agrees with NetChoice that the "threat of myriad lawsuits based on individual examples of content moderation" would "chill the broad application" of rules against disapproved content such as hate speech and medical misinformation.
Pitman notes that H.B. 20 "discriminates based on content and speaker," which triggers "strict scrutiny" under the First Amendment. The law discriminates explicitly through the kinds of "censorship" it allows and implicitly through the user threshold for the platforms it covers. Pitman notes that "a state senator unsuccessfully proposed lowering the threshold to 25 million monthly users in an effort to include sites like 'Parler and Gab, which are popular among conservatives.'"
Pitman also concludes that H.B. 20 is "unconstitutionally vague," leaving platforms uncertain how to comply with its requirements. The law demands that they provide "equal access or visibility to" expression, but it's not clear what that means. The law authorizes the attorney general to sue over a "potential" violation, without any requirement that the violation be imminent. "Subjecting social media platforms to suit for potential violations, without a qualification," Pitman says, "reaches almost all content moderation decisions platforms might make, further chilling their First Amendment rights."
Since H.B. 20 "imposes content-based, viewpoint-based, and speaker-based restrictions," Pitman says, it is subject to strict scrutiny, which requires that the law be "the least restrictive means of achieving a compelling state interest." Even under intermediate scrutiny, Texas would have to show that its law is "narrowly tailored to serve a significant government interest."
Texas argued that it was trying to protect "free and unobstructed use of public forums and of the information conduits provided by common carriers." The state also said it was "providing individual citizens effective protection against discriminatory practices, including discriminatory practices by common carriers." But privately operated social media platforms are neither public forums nor common carriers, Pitman says. And in Tornillo, the Supreme Court rejected a similar argument in favor of compelling a newspaper to publish a politician's response to its criticism, saying such commands cannot be justified by concerns about "abuses of bias and manipulative reportage" resulting from "the vast accumulations of unreviewable power in the modern media empires."
Even if the interests cited by Texas were "compelling" or "significant," Pitman says, H.B. 20, which contains "broad provisions with far-reaching, serious consequences," is far from "narrowly tailored," let alone the "least restrictive means" of achieving the state's objectives. He notes that another federal judge, confronted with a similar but narrower law in Florida, described it as "an instance of burning the house to roast a pig," which Pitman thinks is also an apt description of H.B. 20.
The preliminary injunction in Florida—which U.S. District Judge Robert Hinkle issued on June 30, two months before the Texas legislature passed H.B. 30—clearly did not faze the law's supporters. But it should have.
"Balancing the exchange of ideas among private speakers is not a legitimate governmental interest," Hinkle wrote. "And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny. It is also subject to strict scrutiny because it discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation's size requirements and are or are not under common ownership with a theme park [a special favor for Disney]. The legislation does not survive strict scrutiny. Parts also are expressly preempted by federal law."
H.B. 20 has all of these problems, and then some. Abbott, a former Texas Supreme Court justice who served as his state's attorney general from 2002 to 2015, should have understood that the Texas law was blatantly unconstitutional. His arguments to the contrary are so implausible that it is hard to believe even he accepts them.
"Twitter, Facebook and other massive platforms aren't just any private companies," Abbott said in the Post. "They are our modern-day public square, and effectively control the channels we use for discourse." In essence, this argument is no different from the one the Supreme Court decisively rejected in Tornillo. If anything, it is weaker as applied to the internet, where the barriers to entry are much lower than in print publishing and services like the ones exempted from H.B. 20 can and do offer alternatives for people who don't like the policies enforced by the platforms that Abbott thinks discriminate against conservatives.
Abbott also argued that social media platforms should not "enjoy the First Amendment protections that newspapers and other news outlets enjoy," because "they don't shoulder the accompanying responsibilities." How so? "Newspapers cannot be censored, but they can be sued for libel," Abbott wrote. "The social media platforms, by contrast, have received special legal status from the federal government in Section 230 of the Communications Decency Act, which protects them from liability for the content they publish by declaring that they are not publishers or speakers. Having won market dominance thanks to Section 230's immunity handout, these social media giants cannot claim to be speakers again now that it's convenient."
This misconception about Section 230 is widely popular among both Republicans and Democrats, but that does not make it true. When it comes to user-generated content such as comments on articles, "newspapers and other news outlets" enjoy exactly the same protection under Section 230 as social media platforms do. They are not automatically liable for defamatory or otherwise actionable speech by users, and they do not sacrifice that protection if they try to enforce rules against particular kinds of speech they deem unacceptable.
Without the first kind of protection, websites would feel compelled to either eliminate any opportunity for users to post comments or (assuming they had the resources) engage in moderation much more heavy-handed than the sort that irks politicians like Abbott. Without the second kind of protection, they would have to choose between the latter option and no moderation at all.
Although Pitman (unlike Hinkle) did not address the issue, Section 230 also poses a problem for H.B. 20. Section 230 bars states from imposing civil liability on a website for "any action voluntarily taken in good faith to restrict access to or availability of material" it deems "objectionable, whether or not such material is constitutionally protected." H.B. 20 implicitly acknowledges that barrier, saying it does not authorize "damages or other legal remedies to the extent the social media platform is protected from those remedies under federal law"—a proviso that makes the state's ban on "censorship" inoperative as applied to "good faith" decisions regarding "objectionable" content.
Section 230 aside, the Supreme Court has repeatedly held that the government violates the First Amendment when it compels private organizations to publish, endorse, or promote speakers or messages they find objectionable. That is exactly what Texas is trying to do.
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