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What’s the ‘town square’ in Texas? Is it this? Or is it social media?
Senate Bill 12 is a proposal in the Texas Legislature to regulate social media companies, akin to a Florida law signed Monday to “stop Big Tech censorship.”
Authored by Sen. Bryan Hughes (R-Mineola) and seven other GOP lawmakers, the bill is a response to conservative complaints of being removed, “shadowbanned,” or otherwise censored by social media companies.
The bill passed the Texas Senate in a party–line vote April 1, 18–13, but the Texas House didn’t set it for a floor vote until Monday, May 24. Opponents used delaying tactics against it Monday and Tuesday, preventing it from passing ahead of a midnight deadline last night.
Sen. Bryan Hughes
That was the last day for the House to pass Senate bills this legislative session, according to House Rules, which can’t be waived without a supermajority vote.
The House’s failure to act stoked the ire of Lieutenant Governor Dan Patrick, leader of the Senate. This morning he urged the governor to call a June special session to pass “SB 12 to stop social media censorship,” among other priority bills.
SB 12 would apply only to social media companies with more than 100 million active users in a month. The bill says, “An interactive computer service may not censor a user, a user ‘s expression, or a user ‘s ability to receive the expression of another person based on”
- the viewpoint of the user or another person;
- the viewpoint represented in the user ‘s expression or another person ‘s expression; or
- a user’s geographic location in this state or any part of this state.”
The bill defines censorship to mean “to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
However, the bill includes certain exceptions. Companies would still be allowed to remove content that “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…”
Additionally, social media companies could remove content based on a published “acceptable use policy.” That policy would have to “reasonably inform users about the types of content allowed on the social media platform,” and “explain the steps the social media platform will take to ensure content complies with the policy.”
Companies would have to publish various disclosures regarding their “content management, data management, and business practices,” including information about how they curates and targets content to users, moderate content, and rank search results.
The bill further requires a quarterly transparency report that includes data on user complaints, account removals, content removal, and other actions.
The bill requires a live company representative to be available eight hours a day, five days a week to take user complaints through a toll-free telephone number.
If it became law, SB 12 likely would be challenged in court by Big Tech firms. They might rely on First Amendment grounds and federal communications law, specifically Section 230 of the Communications Decency Act.
That’s a federal law, passed in the 1990s, that protects websites that host user content from being sued for removing content deemed to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
But the Texas lawmakers who wrote SB 12 contend that social media platforms are similar to utility companies and telecommunications companies-public utilities that often fall under public oversight or control to avoid situations of monopoly pricing and conduct.
“I don’t tell The Dallas Morning News what to publish.”
Section 1 of SB 12 says, “The legislature finds that social media companies are akin to common carriers [e.g., utilities], are affected with a public interest, are central public forums for public debate, and have enjoyed governmental support in the United States.” For that reason, they think it’s fair that they be subject to limits on how and why the remove user content.
But critics counter that private businesses have a right-or indeed even a responsibility-to control the content hosted on their own platforms. Forcing these companies to host user speech against their own content or moderation policies would itself be a violation of the companies’ First Amendment free speech rights.
Sen. Sarah Eckhart (D-Austin) spoke out against SB 12 when it passed the Senate in April. Addressing her remarks to Republican lawmakers, she said, “Your party is going down the road of big government. I just want to be clear, I want to just say something because this is important.
“You know, Facebook is a web-based business. It isn’t a pipeline, it’s not a railroad, it’s not a town square, which belongs to all of us. It’s a web page, it’s a business that trades its users’ private information for its own profit. You know that.”
Eckhardt continued, “I don’t want you to weep for Facebook. They’ve acted miserably over the last five years, but I don’t get to tell them what to publish, just like I don’t tell The Dallas Morning News or the Express-News in San Antonio or the Tribune.”
Finally, the Democrat senator told her Republican counterparts that she thought the bill was an example of “overreach” on the part of a ruling party that had grown too accustomed to success. “Respectfully, I think you’ve overreached in this situation because… Facebook, whether you like it or not, is a business. It is not a common carrier.”
But Hughes disagreed. He wrote in a statement of intent about the bill, “Social media sites are the modern public square, and while almost all speech is protected from governmental censorship, private digital spaces that host public speech present a novel challenge. Although these sites are privately owned, the nearly universal adoption of a few sites has created a need for protection from speech selection by social media companies.”
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