Texas Signs Law Banning Social Media Moderation and Deplatforming

The state of Texas, through governor Greg Abbott, has signed into law a bill that bans social media platforms from banning people.

Do businesses have a right to control what goes on in their property? Apparently, Texas doesn’t think so at least as far as social media platforms with more than 50 million users are concerned. In the latest salvo to defend the far rights quest for “right to reach”, Texas has signed a bill banning platforms with more than 50 million users from banning users based on so-called “political viewpoints”. From the BBC:

Prominent Republican politicians have accused Facebook, Twitter and others of censoring conservative views.

Former US president Donald Trump was banned from Facebook and Twitter after a group of his supporters attacked the Capitol in January.

The social networks have all denied stifling conservative views.

However, they do enforce terms of service which prohibit content such as incitement to violence and co-ordinated disinformation.

“Social media websites have become our modern-day public square,” said Texas governor Greg Abbott, after signing the bill into law on Thursday.

This long debunked myth about “anti-conservative bias” has been around for a couple of years now. There was never any solid evidence put out there that there was even such a thing. In fact, the exact opposite is generally true where platforms actually coddle right wing extremist views. Top ranking pages on platforms have constantly been right wing conspiracy theories. In the name of engagement, some platforms actively encourage this quietly in the background, constantly hesitating to enforce community guidelines for big names in the process.

The biggest example is Donald Trump where it seemed that, for years, Donald Trump can do anything he wanted without seeing any consequences on Twitter. Many asked what it would take for Twitter to finally take action. As it turned out, the answer is an armed and deadly insurrection on the US Capitol before they finally banned him – a bar many argue is far higher than average everyday users.

So, many of these calls of tackling so-called “anti-conservative bias” is less about platforms somehow being anti-conservative, but rather, more about conservatives demanding that they be free of the consequences of their own actions. So, that really is where all of this comes from in the first place – the right to reach.

Of course, some might be looking at this and thinking, “that’s not how any of this works.” They’d be correct. Laws certainly do vary state to state, but as a general rule, businesses are free to set rules in their respective establishments within reason. If someone is bothering customers on the premises, it is well within the rights of the establishment to kick that person out. If a customer is acting inappropriately towards staff, staff can refuse service to that customer. This really is nothing new here.

So, what is happening is that certain right wing actors are trying to warp and bend reality. The argument is essentially that large platforms are now considered public. Therefor, those same platforms can no longer enforce community guidelines. That, of course, doesn’t even pass the laugh test and the Electronic Frontier Foundation (EFF) is calling out this law:

The big-name social media companies have all done a rather atrocious job of moderating user speech on their platforms. However, much like Florida’s similarly unconstitutional attempt to address the issue (S.B. 7072), Texas’ recently enacted H.B. 20 would make the matter worse for Texans and everyone else.

Signed into law by Governor Abbott last week, the Texas law prohibits platforms with more than 50 million users nationwide from moderating user posts based on viewpoint or geographic location. However, as we stated in our friend-of-the-court brief in support of NetChoice and the Computer & Communications Industry Associations lawsuit challenging Florida’s law (NetChoice v. Moody), “Every court that has considered the issue, dating back to at least 2007, has rightfully found that private entities that operate online platforms for speech and that open those platforms for others to speak enjoy a First Amendment right to edit and curate that speech.”

We fully expect that once H.B. 20 is challenged, courts will draw from the wealth of legal precedent and find the law unconstitutional. Perhaps recognizing that H.B. 20 is imperiled for the same reasons as Florida’s law, the Lonestar State this week filed a friend-of-the-court brief in the appeal of a federal court’s ruling that Florida’s law is unconstitutional.

Despite Texas and Florida’s laws being unconstitutional, the concerns regarding social media platforms’ control on our public discourse is a critical policy issue. It is vitally important that platforms take action to provide transparency, accountability, and meaningful due process to all impacted speakers and ensure that the enforcement of their content guidelines is fair, unbiased, proportional, and respectful of human rights.

The EFF does hit on a very important perspective: transparency. One thing that is often sorely lacking on some platforms is that when platforms moderate content, it is often done in an opaque manner. If a post gets removed, how does one find out what specifically was wrong with it and how does one challenge such a decision? That has never been all that clear cut depending on the platform.

As for what makes such a law particularly dangerous for users, well, we actually got a great example of this recently even within that state. Earlier this month, we reported on the Texas anti-abortion law which presents a major problem to speech online. Almost immediately in the aftermath, we saw how bounty hunters were trying to establish themselves on Reddit in an effort to cash in on those $10,000 bounties. While the subreddit was banned, this law would make it easier to thwart such bans and allow these for profit campaigns of harassment to continue unchecked on the platform. Reddit was obviously well within their rights to axe the subreddit in the first place.

As EFF pointed out, this will get challenged in court and the law is definitely on their side. Unfortunately, we have to point out that there is now an asterisk to that. This is actually thanks to the overturning of Roe v Wade that kicked off the legal backing of the anti-abortion law in the first place. The US Supreme court is now packed with conservative judges. By most accounts, Roe v Wade shouldn’t have been overturned like it did, yet that is exactly what happened – ultimately sending shockwaves through the legal community. So, the question is, if it can happen to the anti-abortion law, can it happen with this particular law as well? After all, politics is now overruling the judicial process at this stage.

Hopefully, it doesn’t come to that, but as far as we can tell, the door is open to something like that happening by the end of all of this.

Drew Wilson on Twitter: @icecube85 and Facebook.



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