Republicans Defend Texas Social Media Law—and Compelled Speech
A blatantly unconstitutional Texas social media law can start being enforced unless the Supreme Court steps in. The law was blocked by a U.S. district court last year after internet advocacy and trade groups challenged it. But a new order from the U.S. Court of Appeals for the 5th Circuit means Texas can begin enforcement of its social media law—and wreak havoc on the internet as we know it in the process.
NetChoice and the Computer and Communications Industry Association (CCIA)—the groups that filed the lawsuit against the Texas social media law—have now submitted an emergency petition to the Supreme Court asking it to intervene. Meanwhile, Texas and a slew of other states with Republican leaders are advocating for the law, which would treat large social media platforms like common carriers (such as railroads and telephone companies) that have a legal obligation to serve everyone.
How we got here: The Texas social media law (H.B. 20) bans large platforms from engaging in many forms of content moderation—including rejecting unwanted content outright, limiting its reach, or attaching disclaimers to it—based on the viewpoint said content conveys. It’s similar to legislation passed (and blocked, for now) in Florida.
Borrowing a page from George Orwell, supporters like Texas Gov. Greg Abbott say the law is designed to protect free speech. But in addition to protecting people and private entities from censorship, the First Amendment also protects against them being compelled by the government to speak or host certain messages—which is exactly what H.B. 20 does.
Accordingly, Judge Robert Pitman of the U.S. District Court for the Western District of Texas held last December that H.B. 20 violated the First Amendment and issued a preliminary injunction against enforcing it.
But Texas appealed, and last week the U.S. Court of Appeals for the 5th Circuit issued a stay on the lower court’s decision—meaning Texas can start immediately enforcing the social media law.
The 5th Circuit did not offer an opinion explaining its reasoning, so it’s hard to say what’s going on there. In any event, NetChoice and the CCIA are now asking the U.S. Supreme Court to step in.
Internet groups respond: H.B. 20 “is an unprecedented assault on the editorial discretion of private websites…that would fundamentally transform their business models and services,” state NetChoice and the CCIA in their petition to the Supreme Court. Without the ability to moderate based on “viewpoint,” all manners of distasteful and offensive content would have to be permitted, the groups suggest:
HB20 prohibits covered social media platforms…from engaging in any viewpoint–based editorial discretion. Thus, HB20 would compel platforms to disseminate all sorts of objectionable viewpoints—such as Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo–Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders. HB20 also imposes related burdensome operational and disclosure requirements designed to chill the millions of expressive editorial choices that platforms make each day.
NetChoice and the CCIA want the Supreme Court to vacate the 5th Circuit’s stay and allow the district court’s order to remain in effect “while an orderly appellate process plays out,” they write. “Vacating the stay in this case will maintain the status quo while the Eleventh Circuit also considers a parallel appeal concerning a preliminary injunction against Florida’s similar law,” they add.
The common carrier conundrum: Texas, of course, does not want a return to the status quo. In a response to the NetChoice and CCIA petition, Texas Attorney General Ken Paxton argued that it’s OK to violate the First Amendment rights of large internet companies “because Texas law declares the platforms are common carriers. The State may therefore properly limit the platforms’ ability to discriminate among their customers.”
“It is well established that a common carrier ‘can make no discrimination between persons,’ and is ‘bound to accept all goods offered within the course of his employment,'” states the Texas response, comparing social media platforms to telegraphs and telephones.
The idea that social media must be treated like a common carrier is wrong, points out John Bergmayer at Public Knowledge.
There isn’t one single characteristic that demands that a service be treated as a common carrier, or prevents it from being one. The policy question is simply whether common carrier regulation would be socially beneficial with respect to a certain service, or whether there are alternative models of regulation that might work better.
But the idea that social media should be treated like common carriers has become a popular (if incredibly short-sighted and weird) conservative talking point.
Of course, a phone company or a telegraph company—where information is communicated privately between two (or a small number) of people—is nothing like social media, where speech by one user can reach all users. In arguing to treat social media like common carriers, conservatives could make these platforms havens for content that makes other users flee and repositories of things—like frank discussions and depictions of sexuality—that conservatives in other realms are fighting to suppress.
For a detailed and multifaceted case against treating social media platforms like common carriers, see this post from George Mason University law professor and Volokh Conspiracy contributor Ilya
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