A new Texas law regulating social media content moderation may prove to be riding off into the sunset, after being challenged by a new lawsuit.
In September, Governor Greg Abbott signed HB20 into law. The legislation requires social media companies with more than 50 million monthly users to regularly produce reports of the content they remove, as well as the regulations they use to guide their content moderation. The bill also makes it illegal for platforms to remove users based on their political views, and it requires a complaint system to be in place.
However, none of this may actually take effect, as a lawsuit challenging the constitutionality of the bill was filed before the governor’s ink on it had dried.
The lawsuit comes from the Computer and Communications Industry Association (CCIA) and NetChoice, a free enterprise technology company. A press release for the lawsuit argues that the bill “tramples the First Amendment by allowing the government to force private businesses to host speech they’d otherwise remove or restrict,” and “empowers the State of Texas to police and control speech online, violating the First Amendment rights of online businesses.”
Essentially, this bill would make content moderation a legally sticky territory for the platforms. What constitutes a political view? What determines when a user is removed for the view rather than their behavior while expressing it? Ultimately, this bill removes the ability for private businesses to moderate their intellectual property.
“This unconstitutional Texas law threatens all our First Amendment freedoms and will be struck down by the courts the same way the Florida version was. Americans should oppose lawmakers stampeding over the First Amendment rights of private individuals and private online businesses, especially when the aftershocks will ripple beyond just Texas alone,” said Carl Szabo, Vice President and General Counsel of NetChoice.
The press release went on to say, “...HB20 is even more unconstitutional than Florida’s law and cannot withstand First Amendment scrutiny. The Constitution prohibits federal and state governments, not private actors, from restricting Americans’ right to free expression.”
The Florida law mentioned was reported on by FEE earlier this year, and was already found to be unconstitutional.
Is This a Good Idea?
Though there is no shortage of people who would love to see such legislation in effect, one has to wonder if those same people would even like an internet without content moderation. In reality, internet users benefit greatly from content moderation and prefer to spend their online time in informative and enjoyable environments.
If users truly wanted policies like these in practice, then they’d already be using platforms where they’re in play. Take Gab, for example. Gab is a social media platform that bills itself as a “network that champions free speech, individual liberty and the free flow of information online.” They do not moderate content or remove users, and that probably limits its mass appeal.
Even at the height of its popularity, Gab was well under 10 million monthly users. Facebook, in contrast, had 2.895 billion in July of 2021 alone. The vast majority of people...do not want to be on Gab. But that’s basically what they’d get with bills like this.
If state lawmakers got their way with HB20, social media would turn into a bigger cesspool than it already is with platforms no longer able to moderate their content. It wouldn’t be a pleasant experience.
Furthermore, when state lawmakers attempt to force private businesses to host speech they are the ones actually carrying out a violation of free speech and the First Amendment. No one has the right to tell private businesses how to run their shops or who they should allow on their premises. No one. But the government especially does not have that right. This bill is a sad indictment on just how far the GOP appears to be moving from our founding principles.
It is true that many on the left, and the tech companies themselves, have worked to dismantle a culture of open dialogue and free expression. But this is largely because the US government already has too much influence on the tech companies. To truly defend free speech would be to roll back that influence, not ramp it up. But in the name of defending free speech in the culture, the Texas GOP has violated free speech in the law.
Another big motivation is scoring points against political enemies. Increasingly, it seems the main goal in this country is to “beat” the other side at all costs.
Becoming What We Hate
There is an old saying in yoga that goes, “we become what we hate.” The Irish writer, George William Russell expanded upon this concept in the context of political science and wrote, “By intensity of hatred, nations create in themselves the character that they imagine in their enemies.”
We see this concept in play in the US at this very moment. It’s easy for people to become consumed with fighting what they hate versus upholding the principles we were founded upon. And when one is merely focused on fighting what they dislike, they quickly assume an “anything goes” mentality. Instead, we need to hold ourselves and our leaders to founding principles like free markets, individual rights, and limited government.
It appears some state lawmakers on the right have grown to hate the left more than they love the Constitution, and in the process they’re becoming what they disliked in the first place.
One does not protect free speech by using the government to violate free speech. We protect free speech by fighting for the rights of others to use it, even for purposes and in ways we do not like or benefit from.
I do not like the way many social media platforms moderate their content, but I will die on the hill of their right to do so. Freedom doesn’t mean things always go your way, but the downsides of that are much better than those of government infringing upon markets and essential liberties.
Over the years, Texas has earned a reputation as one of the more freedom-loving states in the nation. But new legislation indicates some lawmakers just might be “all hat and no cattle.