Protection or Censorship: How Can Social Media Platforms Regulate Content?

On September 2nd, 2021, the Texas Senate passed House Bill 20, which addressed censorship of “digital expression” on social media platforms, by a margin of 78 to 42. Texas Governor Greg Abbott (Republican) subsequently signed H.B. 20 into law on September 9th. The passage of the law was soon met by a lawsuit filed by Net Choice and the Computer Communications Industry Association, whose most notable clients include Google and Twitter.

The law specifically targets social media platforms with over 50 million monthly users in the United States – a category that includes Twitter, Facebook, Instagram, and Youtube, among others. Under H.B. 20, these platforms are required to publish reports for the public twice a year. These reports must specify not only the number of account suspensions and the extent of content removal since the last report, but also what criteria deemed these posts and accounts necessary for censorship. Moreover, the law prevents social media platforms from deleting Texan’s accounts based on their political views. If a user believes they were subject to unjust censorship, the social media platform must provide an accessible and intuitive path for users to file their complaints regarding violations of H.B. 20. The one exception to the law is censorship of “expression that directly incites criminal activity” and “specific threats of violence.” 

The law was motivated in part by the January 6th insurrection on Capitol Hill. The event led to both the banning of former President Donald Trump and the deletion of more than 70,000 accounts linked to the pro-Trump conspiracy theory, QAnon, from Twitter. Governor Abbott and supporters of the law did not express support for the insurrection specifically; however, Republican legislators in Texas expressed that the law was intended to counteract the anti-conservative bias of tech companies. From their perspective, social media platforms like Twitter and Facebook silence conservative ideas using content regulation. As the leader of the Texas Republican Party, Governor Abbott explained, “social media companies are part of a dangerous movement to silence conservative ideas and religious beliefs.” Abbott has pointed to a Wall Street Journal report on Facebook and the censorship of the “Hunter Biden laptop story” on Twitter. The latter has been confirmed by only one independent source more than a year after the 2020 Presidential election through Politico. Supporters of the bill argue that this behavior by social media companies violate Texans’ First Amendment rights and  that the law will “protect Texans from wrongful censorship.” 

Net Choice and the CCIA rebut this claim by arguing that the current standards set by social media companies do not violate the First Amendment since Constitutional provisions do only apply to governmental organizations, and not private companies. Net Choice and the CCIA argue that, in reality, instead of protecting First Amendment rights, the law actually violates them. More specifically, the plaintiffs point to Miami Herald v. Tornillo, a Supreme Court Case which set the precedent that the First Amendment establishes the right for a private publisher to exercise editorial discretion -- in other words, the ability to evaluate the validity of claims and their sources and remove misinformation. By contrast, the Texas law attempts to force social media organizations to keep content on their platforms that violates their publishing standards (i.e. their community guidelines). A spokesperson for Net Choice explained: “[social media platforms] can’t be forced to carry content that violates the community standards that they use to curate a community of online content that suits their advertisers and audience.” There have even been some Republicans who have expressed objections— such as  State Representative Giovanni Capriglione from Southlake, who warned that legislators were going down a “slippery slope” with the passage of H.B. 20. 

Others oppose the law on different grounds. For example, Thomas Leatherbury, director of the First Amendment Clinic at Southern Methodist University Dedman School of law, decided the law to be unconstitutional on the grounds that it violated the equal protection clause by targeting companies of a certain size. While this argument has merit, it has certainly received less attention than that relating to the First Amendment.  

Ultimately, if the Texas law were to go into effect, the result would set an entirely new standard for the spread of information through social media. President Matthew Shruers of the CCIA argues that “forcing those companies to give equal treatment to all viewpoints would put the Nazi party political speech and extremist messages from Taliban sympathizers on equal footing with God Bless America.” Shruers makes an interesting point: the Texas law may degrade the standard for political speech, and, consequently, even destabilize the foundation of our democracy. 

Margaret Nesi is a sophomore at Brown University, concentrating in Computer Science and International and Public Affairs. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at margaret_nesi@brown.edu