Last Thursday, Texas Governor Greg Abbott signed House Bill 20 into law, legislation that would prohibit social media companies from banning users for their political beliefs and provide users with a legal remedy for unfair discriminatory behavior.
The law is very similar to legislation passed earlier this year in Florida. Governor Ron DeSantis signed Senate Bill 7072 into law at the end of May. Within days, technology trade groups had filed a lawsuit, and on June 30, a federal judge stopped the bill in its tracks with a preliminary injunction.
For the bill’s proponents, the law’s intention is to protect the free speech rights of state citizens when using social media.
“Freedom of speech is under attack in Texas,” said Gov. Abbott. “There is a dangerous movement by some social media companies to silence conservative ideals and values. This is wrong and we will not allow it in Texas.”
The text of the Texas bill reads that citizens have “a fundamental interest in the free exchange of ideas and information,” and that the state has “a fundamental interest in protecting” that free exchange. Toward that end, the bill deems the largest social media platforms common carriers “by virtue of their market dominance.”
Texas House Bill 20 would also require social media companies to “publicly disclose…its content management, data management, and business practices” in a way that is “sufficient to enable users to make an informed choice” about their use of the platform. In addition, social media companies would be required to publish a biannual transparency report detailing their handling of illegal content and user complaints and provide users with “an easily accessible complaint system.”
These requirements would go into effect in December and apply to all social media companies with more than 50 million users per month (which includes companies like Facebook, Twitter, and YouTube).
Opponents to these regulations also appeal to free speech principles. Steve DelBianco, president of NetChoice (the same tech group that sued Florida for its social media regulation law) voiced his opposition to Texas’s efforts:
This bill abandons conservative values, violates the First Amendment and forces websites to host obscene, antisemitic, racist, hateful and otherwise awful content. Moderation of user posts is crucial to keeping the Internet safe for Texas families, but this bill would put the Texas government in charge of content policies.
And Adam Kovacevich, chief executive of Chamber of Progress, said, “This law is going to put more hate speech, scams, terrorist content and misinformation online, when most people want a safer, healthier internet.”
The Texas and Florida laws do not prevent social media companies from moderating their content – they simply restrict political discrimination and allow users a legal remedy if they feel they have been unfairly treated by an online platform.
Regulating social media and empowering users is just one of many routes Big Tech skeptics are exploring in their efforts to curb what they deem a threat to free speech. Others are pushing for reform (or all-out abolition) of Section 230, the convoluted legislation that has been social media’s protection from lawsuit since the 1990s. Others are seeking to enforce antitrust laws and break up “Big Tech monopolies.” Still others suggest that social media companies should be treated as common carriers, an idea given some popularity by Justice Clarence Thomas.
Earlier this year, Justice Thomas wrote in a concurrence, “There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated.” He cited the mail service, phone companies, and transportation as services so widely used that common carrier status was necessary in order that the government might protect the interests of citizens from big business.
The same tension holds here: When big business (social media) has grown large enough and is so common that it is of everyday use to a vast majority of people, is it necessary for big government to step in? And if so, when?