Last week, the Texas Senate passed a measure that would prohibit large social media companies like Facebook and Twitter from censoring political and religious viewpoints of Texas citizens. The bill now awaits a vote in the Texas House.
Senate Bill 12 was introduced in March by State Senator Bryan Hughes. Titled “Relating to the censorship of users’ expressions by an interactive computer service,” the bill would not only prohibit censorship, but would require social media companies to disclose their moderation policies, publish reports about any blocked content, and create a legal route for people to appeal any censoring or deplatforming decisions.
Social media companies currently enjoy legal protections against lawsuit under Section 230 of the U.S. Code, which on the one hand gives them censorship powers while simultaneously protecting them from liability for any content posted to their sites. There has been ongoing discussion on both sides of the political aisle about potential reforms needed in Section 230 as social media evolves.
After the vote on April 1, Sen. Hughes posted a video to Twitter to inform voters of the victory.
“I think we all have to acknowledge that social media companies are the new town square,” he said, “and a small group of people in San Francisco can’t dictate free speech for the rest of us.”
Texas Governor Greg Abbott is expected to sign the bill if it passes the House. Abbott gave his hearty approval of the bill from the beginning, appearing alongside Sen. Hughes at a press conference in March to announce the legislation.
“Social media sites like Twitter, like Facebook, they have evolved into the modern day public square,” said Abbott in March. “These are the areas that used to be the courthouse square where people would come to talk. Now people are going to Facebook and Twitter to talk about their political ideas. And what Facebook and Twitter are doing, they are controlling the flow of information and sometimes denying the flow of information.”
The “modern day public square” language used to describe social media isn’t an idea held solely by Texas politicians. In Washington, D.C. this week, Justice Clarence Thomas wrote a concurring opinion in a recent ruling by the Supreme Court, arguing that social media companies could be considered common carriers, and therefore, liable to government regulation.
On April 5, the Supreme Court dismissed a case from a lower court in which Twitter users attempted to sue Donald Trump for violating their First Amendment rights when he blocked them from his Twitter account. The plaintiffs argued that Trump’s Twitter page was a public forum run by a government entity, which entitled them First Amendment protections against being blocked or banned from the account.
The Supreme Court instructed the lower court to dismiss the case as moot, considering that Trump is no longer a public official.
Thomas took the opportunity in a concurring opinion to comment on the nature of social media and its relation to free speech.
Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.Concurring Opinion, Clarence Thomas, Biden v. Knight First Amendment Institute at Columbia University
So long as social media services remain private entities, they appear to be sufficiently protected from government interference and therefore able to moderate content at their own whims. Thomas argued, however, that the unique nature of large social media platforms (particularly the monopolistic power of the largest platforms) may require a different approach.
Thomas suggested that a solution to the problem of “private, concentrated control over online content” could be “found in doctrines that limit the right of a private company to exclude.” He pointed to the historical legal precedent of government regulation over common carriers and public accommodations such as mail service, phone companies, and transportation services.
“There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated…” stated Thomas.
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