Claiming there is “a dangerous movement by social media companies to silence conservative viewpoints and ideas,” Texas Governor Jim Abbott (R) signed H.B. 20 (An Act relating to censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages). The Act is strictly an act of political grandstanding as it is almost certain to be tossed out once the inevitable lawsuit challenging its constitutionality is heard.
The Act has two key sections. Chapter 120 addresses disclosure requirements for social media platforms, including requiring social media platforms to:
- disclose on its website its acceptable use procedures (AUP), content management, and uses algorithms or other procedures to determine platform results;
- publish a biannual transprency report that includes data on reports and removal of illegal activity; and
- establish an appeal procedure whereby a user can challenge removal of content under the platforms AUP.
The Chapter empowers the Attorney General to enjoin violations of the bill.
Chapter 143A is the bill’s “anti-censorship” provision which prohibits a platform from censoring a user or a user’s ability to receive content based on (i) the viewpoint of the user or another person; (ii) the viewpoint represented in the content; or (iii) a user’s geographic location — even if the viewpoint violates the platform’s AUPs. The bill authorizes a user to bring in action for declaratory relief and recover attorneys fees and for enforcement by the Attorney General.
The bill specifies some permitted “censorship” which includes (i) content which it is “specifically authorized to censor by federal law,”; (ii) removal requests relating to sex trafficking and abuse; (iii) content inciting criminal activity or criminal violence on account race, disability, religion, national origin, age, sex or law enforcement. The Republican legislature rejected amendments that would also permit removal of posts related to Holocaust denial, domestic or international terrorism, and vaccine disinformation.
The legislature, apparently recognizing that they are overstepping federal authority, stated that Chapter 143A applied only to the maximum extent permitted by law and that it does not subject social media companies to damages or other remedies “to the extent the social media platform is protected from those remedies by federal law.”
The Act was passed mere weeks after a Florida court invalidated a similar Florida law as preempted by Section 230 of the Communications Decency Act and that requiring social media platforms to carry content violated those platforms’ First Amendment Rights.
NetChoice, a pro-free enterprise and free expression interest group which challenged the Florida law said, “HB 20 has the same First Amendment flaws as the Florida law that a federal court blocked this summer. The same outcome will almost certainly occur in Texas.” NetChoice’s President, Steve DelBianco added:
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.
As TechDirt observed:
Still, the entire point of this bill is to play up a culture war for grandstanding politicians, and Texas Governor Greg Abbott wants to grandstand with the best of them (even if he’s a pathetic copy of some of the other grandstanders in his party). Even so, it still was quite something to see Abbott announce on Twitter that people should watch him on Facebook as he signed the bill into law — a bill that would attempt to remove the 1st Amendment rights against compelled speech from both companies.
As the saying goes, “Don’t Mess with