The States Take on Social Media
Social media has become an essential part of public debate. And each digital social medium performs a distinct and unique role in our communal, digital life. Facebook has become the venue of choice for political advertising and conservative populism.[1] Twitter, on the other hand, is comparatively smaller than Facebook – but its users are disproportionately influential with mainstream and institutional journalists and writers.[2] Thus, the conversations on Twitter tend to steer the national conversation. Given the power and influence of these companies, states and the national government have begun thinking more critically about their role in shaping social relations.
While numerous regulatory tools exist at the federal level – such as Section 230 – state-level regulation has only recently been broached. Texas, Florida, and New York – for different partisan and ideological reasons, utilizing similar but diverse tools – have recently given a glimpse of what state regulation of social media might look like. This post will focus, in particular, on Texas’s new legislation.
Texas’s foray consists mainly of H.B. 20, prohibiting social media platforms with “more than 50 million monthly active users” from censoring a “user, a user’s expression, or a user’s ability to receive the expression of another person” based on viewpoints expressed by or attributed to that user.[3] Censor, in this context, means to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discrimination against expression.”[4]
H.B. 20 provides for a private right of action on the part of an affected user to sue for declaratory and injunctive relief, and for a public enforcement action by the Texas Attorney General against companies who are alleged to have violated the law.[5] H.B. 20, however, also contains safe harbor provisions, allowing companies to censor users for certain reasons, such as to prevent the sexual exploitation of children, or to react against expression which “directly incites criminal activity” or “consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.”[6] In addition to prohibitions on viewpoint censorship, H.B. 20 also requires certain public disclosures and reporting by social media companies on their content moderation decisions, including transparent disclosure of their policies for “acceptable use” of the platform.[7]
In September of 2021, a group of trade associations representing the large social media platforms affected by H.B. 20 sued the Attorney General of Texas, seeking a preliminary injunction against enforcement of the law.[8] In the Western District of Texas, the plaintiffs argued that, under the First Amendment, “no government may compel a privately owned website or application to disseminate speech and interfere with its editorial discretion over its own platform.”[9]
The plaintiffs argued in their motion for preliminary injunction that the right to “editorial discretion” has been recognized by the Supreme Court as protected under the First Amendment.[10] Supreme Court precedent, argued the plaintiffs, protected “the editorial discretion of private entities disseminating speech, including the fundamental ‘choice of material’ disseminated.”[11]
The Western District Court of Texas agreed.[12] “The Supreme Court’s holdings in Tornillo, Hurley, and PG&E stand for the general proposition that private companies that use editorial judgement to choose whether to public content… cannot be compelled by the government to publish other content.”[13] In that sense, social media companies are more like newspapers that “engage in substantial editorial discretion” and are entitled to a “higher level of protection” than they are like “common carriers,” which, being neutral “passive conduits,” are entitled to a “lower level of protection.”[14] To the extent that H.B.20 prohibits social media companies from exercising that editorial discretion to moderate content, or forces them to disseminate content they otherwise might not, it violates the First Amendment.[15]
On appeal, the Fifth Circuit rejected this reading of Supreme Court precedent. The panel decision, written by Circuit Judge Andrew Oldham, reasoned that there are distinctions in Court doctrine on hosted speech.[16] The freedom of speech “includes ‘the right to refrain from speaking at all.”’[17] The government may not force a private actor to “speak someone else’s message.”[18] However, certain companies – like telecommunications “common carriers” or shipping services – can be forced to “host, transmit, or otherwise facilitate speech.”[19]
After reviewing the cases central to “hosted speech” doctrine, the Fifth Circuit delineated the showings a speech host must make to mount a First Amendment challenge – it must show that the law either “compels the host to speak or restricts the host’s own speech.”[20] Instead of an undifferentiated right to “editorial discretion,” Supreme Court doctrine on hosted speech instead is case-specific, depending enormously on the kind of institution the speech host is. For example, a newspaper like the Miami Herald “curates and publishes a narrow ‘choice of material’ in accordance with the “editorial control and judgement of its editor.”[21] When that kind of speech host “affirmatively chooses to publish something, it says that a particular speech – at the very least – should be heard and discussed… forcing a newspaper to run this or that column is tantamount to forcing the newspaper to speak.”[22] Similarly, a parade organizer is entitled to control which floats it does or does not include in its event, because this form of expression—a parade – is “intimately connected” with the hosted speech – a parade organizer, like a newspaper, is not a passive or neutral conduit for the speech it decides to host.[23] Far from possessing a “freewheeling right” to discriminate, the protections afforded to particular speech hosts – like newspapers or parade organizers – instead depend on the nature of the speech they host and the kinds of institutions they are.[24]
The large social-media platforms, on the other hand, are not “intimately connected” to the speech they host, and neither do they exercise serious judgement in deciding what is posted to their platform, as with a newspaper. Thus, limiting their censorship ability does not “compel” the platforms to say anything. “The Platforms,” Circuit Judge Oldham writes, “are nothing like the newspaper in Miami Herald. Unlike newspapers, the Platforms exercise virtually no editorial control or judgement… Thus the Platforms, unlike newspapers, are primarily ‘conduits for news, comment, and advertising.”[25] The platforms are operated under the assumption that they are not actually the speakers of the hosted speech – culturally and legally, this is the way they are perceived.
In sum, editorial discretion is not protected per se as a freestanding First Amendment right – rather, the presence of editorial discretion and judgement is a factor to be considered in determining whether particular conduct is protected speech at all. What is protected in Miami Herald is not the editorial discretion – rather, the presence of serious, deliberative editorial discretion is a hint that what the institution is producing is protected speech.[26]
The platforms have another problem; Section 230, the statute which governs the internet landscape as we know it, protects interactive computer services from being treated as “publisher or speaker” of the information they host on their platforms.[27] As the Fifth Circuit pointed out, “Section 23 undercuts both of the Plaintiff’s arguments… first, they suggest the user-submitted content they host is their speech; and second, they argue they are publishers akin to a newspaper. Section 230, however, instructs courts not to treat the Platforms as ‘the publisher or speaker’ of the [content] they host.”[28] The platforms have argued in response that Section 230 is a technicality – Congress “simply instructed courts to pretend they aren’t [publishers or speakers] for the purposes of…liability.” [29] And regardless, Congress cannot define what speech is or is not protected under the First Amendment – that is for courts to determine, and Section 230’s own definition are “irrelevant” to that determination.[30]
No doubt, in the coming years, other states will pass their own versions of H.B. 20. These bills do not always track partisan lines, either. Courts will be asked to weigh in on the constitutionality of these statutes – perhaps, in time, even the Supreme Court itself. Whatever the outcome, the future of the internet will be decided in this new frontier.
Footnotes
