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The Fight Continues Over Texas’ Controversial Social Media Law

Last week, a federal appeals court reinstated a Texas law allowing residents to sue social media companies for moderating their content. Industry experts, however, argue that the bill is unconstitutional.

Last week, a federal appeals court reinstated a controversial Texas law that prohibits large social media companies from moderating user content based on their viewpoints.

The legislation was previously on hold due to a lawsuit brought on by tech advocacy groups NetChoice and the Computer and Communications Industry Association, who claimed that the legislation was a violation of First Amendment rights.

Now that the legal challenge has been cleared, Texas residents can sue social media companies like Facebook and Twitter for censoring their content.

“The main thing right now is that it was reinstated without any ruling from the court that the law is constitutional,” said David Greene, a senior staff attorney and civil liberties director for the Electronic Frontier Foundation (EFF). “The only ruling we have so far is from the trial judge who originally ruled that it was unconstitutional.”

However, the appellate court hasn't ruled yet on the law's constitutionality, raising a key issue.

"It’s just bad legal process," Greene explained. "If you're going to put a law into effect, you need to issue a written explanation explaining why that’s the case; this isn't how the process is supposed to work."

As a result, EFF, the American Civil Liberties Union (ACLU), the ACLU of Texas, the Reporters Committee for Freedom of the Press, the Center for Democracy and Technology and other advocacy groups filed requests with the U.S. Supreme Court to issue an emergency order to block the lower court decision.

“If this content moderation law is allowed to go into effect, it would run headlong against the Supreme Court’s established precedent for protecting editorial discretion, and it could wreak havoc for users’ experiences on social media,” Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy and Technology Project said via email. “We urge the Supreme Court to block this unconstitutional law and protect the First Amendment rights of publishers everywhere.”

One way the bill could impact social media users’ experience is an increase in harmful speech online.

“While content moderation at scale is difficult to get right, it blocks content that some users don’t want to see, like personal abuse and harassment, hateful speech, promotion of suicide and self-harm, and glorification of Nazi ideology,” EFF said in a statement.

Now that the legislation is in effect, all viewpoint-based content moderation practices will either have to be disregarded or altered to fit within the bill's parameters, the EFF statement explained.

But, not all aspects of the bill are so straightforward or easy to understand.

“Right now, the Texas law is in effect, but no one exactly knows what that means, and no one knows what to do about it,” Jennifer Stisa Granick, surveillance and cybersecurity counsel for the ACLU Speech, Privacy and Technology Project, said. “You look at experts discussing the effect of the bill on Twitter, and the one true thing you can say is it’s not clear what platforms are supposed to do or what is legal or illegal. It’s pretty chaotic.”

For Texas residents, Granick said, the law envisions that people could sue based on an argument that their post was taken down or somehow treated differently from other content.

The tricky thing about this is that almost every piece of content on the Internet is treated differently from others. “When you do a Google search, there’s the first search result and the second search result. Those were treated differently, and there are reasons for that,” Granick said.

She explained that when it comes to social media platforms, they make these decisions because it’s their First Amendment right and what they think is attractive to their users to keep them on the platform and show ads that make money.

“We will have to wait and see the response from the Supreme Court and the Fifth Circuit Court of Appeals ruling,” Greene said. “If the Fifth Circuit upholds the law, I think we’ll see other states pass similar laws pretty quickly.”

As for Texas’ response to the request for the Supreme Court to pause the bill, state Attorney General Ken Paxton argued that the legislation does not infringe on tech platforms’ speech rights but instead looks to regulate social media companies’ conduct concerning their users.

“Even if the law raised First Amendment concerns, those concerns are adequately addressed because the bill defines social media companies as “common carriers” similar to phone companies and railroads,” Paxton said in a petition to the Supreme Court.

Only time will tell as Supreme Court Justice Samuel Alito reviews the petitions regarding the law.
Katya Diaz is a staff writer for Government Technology. She has a bachelor’s degree in journalism and a master’s degree in global strategic communications from Florida International University.