HB 20, which will become effective later this year unless enjoined by the court, requires increased transparency from major social media platforms and prohibits them from censoring users.
NetChoice and the CCIA, whose members include big tech companies such as Facebook and Google, contend that the regulations on the social media platforms are a violation of the businesses’ First Amendment rights to curate the content hosted on their sites.
“Allowing HB 20 to take effect will inflict significant harm on Texans by threatening the safety of users, creators, and businesses that use these websites to reach audiences in a family-friendly way,” said the president and CEO of NetChoice, Steve DelBianco, in a press release. “No American should ever be forced to navigate through harmful and offensive images, videos and posts.”
The lawsuit says that the big tech members of NetChoice and CCIA currently “prohibit all sorts of speech that they deem harmful or objectionable or against their policies, including medical misinformation, hate speech and slurs (spanning the spectrum from race and religion to veteran status), glorification of violence and animal abuse, and impersonation, lies, and misinformation more broadly.”
Though users must agree to such oversight by the platforms in the fine print of their terms of service, advocates of banning social media censorship argue that the regulation of “hate speech” without any clear standard of what constitutes it is dangerous.
An example of that counter-argument can be found in an amicus brief for another lawsuit from NetChoice against a similar Florida law, which was filed on behalf of the satirical website “The Babylon Bee” and its non-satirical sister-site “Not the Bee.”
The brief states, “[I]n Twitter’s judgment, a politician’s biologically correct statement that ‘[a] man has no womb or eggs’ is hate speech, but a college professor’s profoundly racist statement, ‘I block white people’ because ‘[t]here is nothing white people can say and do that is creative, profound, and intimidating,’ is valuable discourse deserving to remain on the platform.”
As of the publication of this article, the latter tweet remains uncensored on Twitter.
“It appears that in Twitter’s judgment, biology is hate, but unadorned racism—at least of a certain variety—is not,” it remarks.
Proponents of the Texas law also argue that checks on social media platforms are necessary because those methods of communication have become a powerful aspect of modern discourse where the freedom of speech for individuals should not be stifled.
“Twitter, Facebook and other massive platforms aren’t just any private companies,” wrote Greg Abbott in a recent op-ed published in the Washington Post. “They are our modern-day public square, and effectively control the channels we use for discourse.”
Abbott and other supporters say the law “doesn’t interfere” with the platforms’ “ability to block criminal activity on their sites, or to remove content that incites violence or is illegal or obscene,” but is necessary to shield everyday Texans from censorship despite the vast protections federal law has given to Section 230 of the Communications Decency Act.
That law explicitly protects online platforms to be able to censor content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
Unlike the Florida law, which could allow individuals to sue for monetary damages from the platform, lawmakers say that the Texas proposal “threads a needle” through Section 230 by only allowing the individual to sue to stop the censorship and “costs and reasonable and necessary attorney’s fees.”
But when a similar proposal to HB 20 was being debated earlier this year, DelBianco appeared to testify against it and argued that Section 230 won’t matter, but rather that the courts would ultimately strike it down on the basis of the First Amendment.
Whether the freedom of companies to censor what they please or whether individuals’ freedom of speech should be protected even on social media is a legal debate that will likely not go away anytime soon in the digital age, but now that ball is in the courts.
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Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.