Governor Abbott Sets His Sights on Social Media, Ignoring Constitutional Law

Social Media CensorshipEmorj

Social media companies are censoring right-wing Republican-held opinions in favor of Democratic ideology. This popular narrative resonates with Republicans across the country and Texas is no exception. In response to this firmly held belief, Republicans in Texas are addressing the perceived problem with a bill.

SB12 is all about creating, as they see it, a level playing field, where social media companies will be forced to allow right-wing and extreme political ideology on their platforms or face legal consequences. During a special legislative session convened by the governor last week, part of the debate will focus on passing this content moderation legislation.

In reality, SB12 promises detrimental effects that will undoubtedly restrict the ability of private social media platforms to moderate their own content. It will contribute to making the internet a more unreliable, extremist arena and the bill is highly unlikely to withstand inevitable, swift, and vigorous constitutional challenges that will follow in its wake.

The timing for the bill is serendipitous, as the state's attention has been firmly focused elsewhere, on the voter suppression bill, and every likelihood exists that SB12 will sail through, pretty much unimpeded and unnoticed.

As proposed, it would prohibit social media companies from blocking users based on their viewpoints or their locations within Texas and impose attorneys’ fees on those companies that do. In effect, the legislation would force social media companies to host and maintain content that goes against their own terms of service or user policies.

The concept and the bill are in stark contrast to the reality of the situation. Governor Gregg Abbott’s proposed legislation is based on the flawed notion that social media companies are in the public domain when in reality nothing could be further from the truth.

According to Tom Leatherbury, director of the First Amendment Clinic at the SMU Dedman School of Law and co-head of the appellate practice group at Vinson and Elkins, these businesses are neither public utilities nor railroads.

Since the 1990s, the companies that operate these platforms have limited who can use them and the content that they will host, and the companies have outlined those expectations in their terms of service agreements. Private companies have First Amendment rights against government compulsion to carry speech of which they don’t approve.

The second issue which SB12 seems to ignore is the glaring issue of constitutional law, and this bill has historical baggage inherited from similar efforts in others states, a history which the Texas Republican base seems intent on ignoring.

Recently, a federal court in Florida decided that a content moderation bill passed by the Florida Legislature and signed into law by Gov. Ron DeSantis was unconstitutional and in violation of federal law and granted a preliminary injunction to stop the bill from going into effect.

Defending a bill like SB12 will cost Texas upwards of six figures and it's a fight they are extremely unlikely to win. The U.S. Supreme Court holds that the government cannot regulate or punish the speech of private actors under the First Amendment absent viewpoint-neutrality, a compelling state interest, and narrow tailoring, among other things. 

Content moderation bills such as SB12 violate the Supreme Court’s First Amendment jurisprudence on all the above counts.

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