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How a Texas law could impact First Amendment rights and content moderation online

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In this photo illustration, social media apps are seen on a mobile phone on July 29, 2020 in Istanbul, Turkey. (Chris McGrath/Getty Images)
In this photo illustration, social media apps are seen on a mobile phone on July 29, 2020 in Istanbul, Turkey. (Chris McGrath/Getty Images)

In Texas, large social media platforms may soon lose the right to moderate their own content.

“It does make exceptions for harassment, for violence, censorship that is permitted under federal law Section 230 which is its own thing," law professor Alan Rozenshtein says.

"But even reading those broadly ... Do we want to have platforms in which Neo-Nazis are always permitted, by law, to say their stuff?”

Today, On Point: NetChoice v. Paxton – and how a Texas law could impact First Amendment rights and content moderation online.

Guests

Alan Rozenshtein, associate professor of law at the University of Minnesota Law School. Senior editor at Lawfare. Co-host of the Rational Security podcast. (@ARozenshtein)

Julie Owono, executive director at Internet Sans Frontières (Internet Without Borders) and the Content Policy and Society Lab at Stanford. Inaugural member of the Facebook Oversight Board. Affiliate at the Berkman Klein Center for Internet and Society at Harvard. (@JulieOwono)

Interview Highlights

Give us an overview of HB 20. What does this law in Texas actually do?

Alan Rozenshtein: "What the law purports to do, and that may be different than what the law actually does, but what the law purports to do is to limit the ability of the biggest social media platforms from, we can call it censoring, we could call it moderating. There's kind of no value neutral description, from removing content posted by users based on, quote-unquote, their viewpoint.

"That's the core of what the law does. In addition, the law imposes some transparency requirements on platforms so that they publicly disclose how they're moderating. It requires platforms to set up processes for users to appeal content removals. Those are a little less controversial. But the core and what's gotten the most attention, and rightfully so, is this restriction on the moderation based on quote-unquote viewpoint."

I want to talk about the practicality of this. This is not the usual purview of a state law to try to regulate just within a state how these worldwide platforms work.

Alan Rozenshtein: "That's right. And it's not clear how you could have a patchwork system of state regulations on these big platforms, which are not just national, but global. If Texas has its requirements, and Florida, which passed a similar law, has its requirements, but then California or Massachusetts has opposite requirements, there's no obvious way for platforms to run different moderation systems for different users without potentially breaking up the platforms into state-based versions, or possibly even having the platforms just withdraw from some jurisdictions.

"If this law fully goes into effect, it's a possibility that the platforms decide that, Well, we just can't operate in Texas. And so they have to block Texas users. This is one reason why some legal observers, myself included, think that behind this law is lurking some real constitutional issues, beyond just potential First Amendment problems. And that has to do with the ability of states to regulate companies that do business across state lines, because of the potential disruptive effects that could have on the national economy."

Who enforces this law? How would it work?

Alan Rozenshtein: "The statute provides that either a user who believes that they or their content has been removed unlawfully, or the attorney general of Texas could bring a lawsuit against the companies. There's no provision for damages. So you can't sue for money, though you can sue for attorney's fees. But the real main remedy is that a user, or the state of Texas, can ask a court to require the companies to reinstate a user or reinstate content."

Is there evidence of an anti-conservative bias on the part of these companies?

Alan Rozenshtein: "With respect to the kind of question of, Is there conservative anti-conservative bias? It's very hard to know. There's no question that plenty of conservatives are censored, if you want to put it that way, on the big tech companies. But plenty of liberals are censored as well, and plenty of conservatives have done awfully well on social media. In fact, a large reason why we've seen, you know, the growth of a lot of kind of conservative media is because of their ability to leverage social media.

"And of course, social media has incentives not to censor the views that millions of Americans find interesting. At the end of the day, these are for-profit companies that run on user engagement, as they say, and advertisement. So it's just not even in their interest to systematically censor one side of the political spectrum or another.

"Now, there have, again, been some high profile incidents. And I do think Twitter and Facebook taking Trump off their platforms in the wake of the January 6th attack on the Capitol, was quite controversial, frankly, among all sorts of folks, not just conservatives. And in addition, I think there is a perception, and I think this is true, that at least culturally, the companies themselves, their employees, they are certainly to the left of the median American, certainly to the left of the median Texan. Again, though, I'm not sure that translates into systematic censorship of conservatives.

"But I do think you can probably say ... that the technology companies are trying to build platforms that appeal to a wide swath of Americans. And therefore, they are probably erring on the side of censoring when you get to the extreme of public opinion. And here I do think that to the extent that conservatives have polarized in the last decade, more so than liberals, political scientists call this asymmetric polarization. Perhaps maybe there's more censorship of conservative views.

"But again, just to emphasize, the empirical premise of a lot of these laws, that there's some anti-conservative censorship on a broad scale, relative to anti liberal censorship, that very much remains to be proven."

Is there a case to be made that better regulation is needed, particularly for these big tech companies?

Alan Rozenshtein: "I certainly think so. I am not someone who reflexively opposes government efforts to regulate, put some guardrails around what these large tech companies can do. Because the state of Texas is right when it says that these companies control the digital public square, that these are some of the most important forums for communication in modern society.

"And I think that it is, at the very least, questionable to leave these monumentally important decisions to large private companies that operate according to the imperatives of the free market. Now, I'm not saying that there should be total regulation. The devil is in the details, as it is with so many issues of tech policy and law. So I certainly think there's some room. I don't think the Texas law does a very good job, though."

Who should be making these rules? Should we leave it to the companies themselves?

Alan Rozenshtein: "If the companies can come up with good rules, I think that's fine. Often the way to get companies to do something is to threaten regulation. If at the end of the day, the regulation, quote-unquote, comes from the companies themselves, rather than the law, kind of who cares?

"But at the very least, I think the relevant party here should be Congress, not the states. Again, because you cannot have a patchwork of state laws. I don't support state laws trying to limit what companies can moderate. I also don't support state laws on the other side trying to force companies to remove electoral misinformation or vaccine information. I just think this is not an issue for states to do."

Related Reading

Lawfare: "The Fifth Circuit’s Social Media Decision: A Dangerous Example of First Amendment Absolutism" — "On Sept. 16, the Fifth Circuit issued its opinion in NetChoice v. Paxton, upholding the controversial Texas law that limits the ability of large social media platforms to moderate content and also imposes disclosure and appeal requirements on them."

This program aired on September 30, 2022.

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