By Taylor Osborne, Staff Member Vol. 20
On September 9th, 2021, the Texas Legislature passed a law making it illegal for social media platforms to ban users based on their political viewpoints. The law is an apparent response to what legislators, including Governor Greg Abbott and Senator Bryan Hughes, felt was a dangerous move by social media companies to silence conservative views and ideas. The issue peaked after the insurrection of the U.S. Capitol on January 6th, when Twitter purged more than 70,000 accounts, including former President Donald Trump, linking to a dangerous conspiracy for inciting violence. House Bill 20 (H.B. 20) only applies to social media platforms with more than 50 million active users in the United States in a calendar month. With H.B. 20, the Texas Legislature directly placed itself against private businesses and companies like Facebook, Twitter, and Instagram. Still, the courts must ultimately decide the First Amendment implications of legislating this modern form of communication with sparse jurisprudence in this area.
What is House Bill 20?
H.B. 20 strikes at the heart of protected political expression by prohibiting these platforms from exercising discretion over the content disseminated on their sites. Platforms that meet the 50-million user bar must publicly disclose how they (1) curate and target content to users; (2) place and promote content; and (3) moderate content and other like information on an internet website that is easily accessible by the public. Platforms will also be required to publish an acceptable use policy informing users of the types of content allowed on the social media platform. This policy would require the social media platform to outline the actions they will take to ensure the content complies with the policy and give instructions to users on how to report content that violates the policy. In addition to providing this policy, the platform will be required to provide a quarterly transparency report including the total number of instances when the social media platform was alerted to illegal content or activity, took action regarding the reported illegal content, any coordinated campaigns, and report all decisions in cases related to illegal content. Finally, H.B. 20 will mandate that a platform establish a formal complaint process that complies with the new law. The law also penalizes companies found in violation, including a $25,000 fine for every day the company blocks a user or their content.
Challenging Texas Legislators
On September 22nd, just days after H.B. 20 was passed, NetChoice and the Computer & Communications Industry Association filed suit against the state of Texas, seeking to invalidate sections 2 and 7 and enjoin the enforcement of the law. Section 2 imposes various speech chilling-disclosure and operational obligations upon social media platforms, while section 7’s anti-editorial-discretion provisions impose unprecedented restraints on the exercise of editorial judgment upon those platforms. The suit is based on seven different counts, including a violation of the First Amendment. The plaintiffs argue that the law’s vagueness could lead to interpretations that “encompass essentially all expression,” infringing on social media services’ right to free expression. The case also argues that (1) the law is overbroad and would impact virtually every social media platform whether or not it impacts users in Texas, (2) it would prevent companies like Facebook and Twitter from closing accounts that endanger human lives through terrorism or racial hate groups, and (3) the compliance efforts each company would be required to perform to meet H.B. 20 standards would take thousands of hours from new employees and potentially drive these same companies into bankruptcy. This suit follows shortly after a similar suit against the state of Florida for a related social media law.
First Amendment Analysis of H.B. 20
Once this law comes before the court, any ruling on Texas H.B. 20 will depend on how that court characterizes social media. There are two schools of thought about the role social media plays in modern society. Social media is either a “common carrier” and subject to regulation or a “public forum” and only subject to the narrowest regulatory legislation.
Proponents of H.B. 20 argue that social media platforms are the modern equivalent of “common carriers,” much like phone and cable companies acting as monopolies in their service areas and thus subject to government regulation without the protection of the First Amendment’s strict scrutiny review. In Biden v. Knight First Amendment Institute at Columbia University, Justice Thomas clarified this position in his concurrence:
“In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way.”
Opponents of the “common carrier” position, such as those against H.B. 20, are supported by Supreme Court precedent. In Packingham v. North Carolina, the majority holding of the Supreme Court acknowledged that “free speech in cyberspace” is analogous to a public forum; even content-neutral provisions failed an intermediate scrutiny test. In Packingham, Justice Alito concurred with the result but rejected the argument comparing cyberspace to a public forum. He reasoned that if social media sites are the 21st Century equivalent of public streets and parks, then States may have little flexibility in restricting websites that are dangerous to the public. For H.B. 20, the regulation is directly related to political speech.
Should H.B. 20 reach the United States Supreme Court, it is unlikely that they would adopt the “common carrier” designation to social media sites. Services that hold themselves out to the public to carry goods to people for a fee may have this designation, as well as others that hold a monopoly position. However, social media outlets are more akin to a publishing company where the exclusion of material is supported by the Supreme Court. These companies certainly compete (judging in part by the many various platforms) and do not otherwise meet the requirements of a traditional common carrier.
Through H.B. 20, the Texas legislature appears to specifically target social media platforms for their actions concerning political speech. State Representative Briscoe Cain introduced the bill, stating in part that “a small handful of social media sites drive the national narrative and have massive influence over the progress and developments of medicine and science, social justice movements, election outcomes and public thought[.]”
This type of law, addressing political speech, will undergo a strict scrutiny evaluation. It triggers strict scrutiny because H.B. 20 compels speech by restricting editorial discretion and imposing disclosure requirements. It singles out plaintiffs’ members for disfavored treatment based on their platforms’ content while allowing smaller platforms to continue to exercise their constitutional rights to maintain discretion over their sites. Additionally, it contains two content-based exceptions, banning users for advocating violence and child exploitation and allegedly discriminating against the particular viewpoints of social media platforms.
Advocates for H.B. 20 argue that social media companies are now acting as the “judge and jury” on determining what viewpoints are valid and attempting to silence conservative viewpoints. However, the First Amendment protects the hosting site’s right to control its messaging and content. The internet marketplace can allow alternative social media outlets to host their own forums with different standards for acceptable speech, but state legislatures should not be able to force individuals and corporate citizens from making political determinations for speech on their sites.
The fight between private companies and government regulation is not new, but H.B. 20 moves that traditional fight into the modern online world. If H.B. 20 is upheld, it risks the First Amendment freedoms individuals, and companies have steadfastly fought to protect. However, a careful reading of long-established law will ensure legislation like H.B. 20 is subject to strict scrutiny. The federal court system, using strict scrutiny review, has the power to prevent rogue legislatures from reducing our fundamental First Amendment rights.