Note: This piece was written during a push for a quick vote on what would become Texas’ social media “censorship” law. Due to the immediacy, no publication was able to post it in time, so I am publishing it here.
State Senator Bryan Hughes claims that Texas is “leading the nation” with SB 12, his “big tech censorship” bill. But what he’s actually leading is a losing battle against the Constitution. That’s why similar bills have died in other states: the government simply cannot force websites to carry speech against their wishes.
SB 12 would forbid social media platforms from removing content or banning users based on viewpoint. Aggrieved users could seek a court order forcing the platform to reinstate them or their content. There is vanishingly little support for the claim underlying such legislation: that platforms are removing content based on viewpoint (as opposed to violation of platform rules). Regardless, any such court order would violate the First Amendment.
It is a bedrock First Amendment principle that the government cannot compel private parties to speak or to carry the unwanted speech of others. Florida learned this in the ’70s, when the Supreme Court ruled, in Miami Herald v. Tornillo, that the state could not compel newspapers to publish replies from political candidates who had been criticized in their pages. (Florida lawmakers, bless their hearts, forgot this lesson in their rush to pass legislation akin to SB 12). And surely no serious person believes that the government could, consistent with the First Amendment, force bookstores to stock books against their wishes. “[T]he basic principles of freedom of speech and the press,” declared Justice Scalia in 2010, “do not vary when a new and different medium for communication appears.”
Sen. Hughes argues that social media platforms are different because they’re large and play a powerful role in civic discussion — so they can be forced to carry unwanted speech in the name of furthering public discourse. But the Supreme Court rejected this argument in the ’70s, just as it would today. In 2017, when he sat on the U.S. Court of Appeals for the D.C. Circuit, now-Justice Kavanaugh blasted net neutrality rules as unconstitutional, writing that the First Amendment’s protection of editorial discretion “packs at least as much punch when you have room on your platform to carry a lot of speakers as it does when you have room on your platform to carry only a few speakers.”
Even Sen. Hughes himself has, in the past, risen to the defense of businesses’ First Amendment rights. In 2019, his “Save Chick-fil-A” bill was aimed at barring government retribution against businesses on the basis of their “religious belief or moral conviction.” Yet with SB 12 he is engaging in the kind of retaliation against businesses for exercising their First Amendment rights that he once fought. Why the about-face?
SB 12’s proponents claim the bill is consistent with Section 230. That 1996 law (co-authored by a conservative Republican) protects websites from liability for their editorial decisions (such as whether to publish or remove content or users) — including under state law. By limiting the bill to injunctive relief rather than monetary damages, they argue, they are not imposing “liability” for content moderation decisions, and therefore their bill can be enforced consistent with Section 230.
But they are wrong. Section 230’s foundational purpose was to remove obstacles that might discourage websites from setting ground rules—whether based on viewpoint or otherwise—and then enforcing them against objectionable content. Different websites could develop different rules (as they have), and users could decide for themselves which set of rules is most appealing to them (as they can). Court orders requiring platforms to undo their content moderation decisions are not just mildly inconsistent with Section 230—they eviscerate its core purpose. Numerous plaintiffs have attempted to skirt Section 230’s liability shield by seeking only injunctive relief, but courts have consistently rejected such too-clever-by-half attempts to evade Section 230.
Sen. Hughes said that the legislature would “move [SB 12] quickly to give Texans a chance to fight back.” But the only thing that will happen quickly is that lawsuits will be filed and the courts will enjoin enforcement of the law until they inevitably declare it unconstitutional. Texas legislators may see this as a win-win situation: they enact a law that makes a statement, and businesses know that they will be able to successfully challenge it in court. But taxpayers, who will foot the bill for this performative exercise, deserve better.