On September 9, Texas Governor Greg Abbott signed HB 20, a law designed to keep social media companies with more than 50 million subscribers from blocking users whose viewpoints the company disapproves of. Scheduled to take effect in December, the law has already attracted controversy and threats of lawsuits to keep it from going into effect.
Currently, if a user is de-platformed from a large site such as Facebook, there are not a lot of alternatives. The overarching law in the US pertaining to such situations is Section 230 of the federal Communications Decency Act, which prevails if there is a conflict between it and a state law. However, there is wiggle room that Section 230 leaves, at least according to State Representative Briscoe Cain, who authored the Texas statute. Cain regards social media in the same light as telephone companies—that is, “common carriers” — whose business it is to take on any and all comers and not discriminate among them based on content.
Such discrimination happens all the time, as one unconfirmed incident I heard of recently attests. A man at the church I attend volunteers at a local pregnancy resource centre, which will be holding an online fundraising event in a few weeks. He told me that the centre has found that some of their emails sent to supporters have mysteriously disappeared, implying that the internet service providers’ spam filters had been adjusted to block emails from the centre.
Another example taken at random from a web search concerns Ryan Moore, a self-described writer and advertising broker, who tried to advertise a video he made in the spring of 2019 in which he was wearing a red “MAGA” (Make America Great Again) hat. While I have not viewed the video (I checked the link and it is now “unavailable”) his description of it sounds mild enough—criticism of the Christchurch, New Zealand terrorist bombing, good wishes for a nice St Patrick’s Day, and so on. Not only did Google refuse his ad to promote his video, but it also permanently banned him from ever having a Google ad account again, and confirmed this decision when Moore inquired, saying “Since this decision is final, the account will not be reinstated.”
I could multiply such instances that range everywhere from a single post being blocked to the wholesale destruction of an entire business when the Parler app and website were de-platformed by Google and Apple in 2019.
Not everyone who gets de-platformed is defensible, and even Rep. Cain probably does not want to allow hard-core child pornography to go unrestricted on the internet (although it probably does if you look hard enough). But HB 20 is an attempt to redress the huge power imbalance that happens when an individual or small organization has its access to social media blocked by a giant well-funded firm that exercises essentially monopoly powers.
Either the Texas attorney general or the wronged entity could sue under the new bill, and this may be a point of vulnerability, in that opponents of the bill claim it may interfere with the ability of social media companies to regulate their own content. Of course it will.
NetChoice, a trade association which counts Google, PayPal, and Facebook among its members, issued a statement condemning the passage of HB 20 and saying that it will probably be blocked by a federal court once it goes into effect. NetChoice’s position is that social media firms, as private entities, are entitled to carry only content that they choose, and by using their facilities, users put themselves at the mercy of the firm’s discretion.
This reminds me of a scene out of the 1940 Disney animated film “Fantasia,” which set to music cartoon characters both familiar and otherwise. In time with the famous ballet music “Dance of the Hours,” viewers are greeted by a company of baby hippopotamuses, each with a frilly pink lace tutu encircling her waist.
The analogy is clear—we have a troop of baby-hippo Big Tech giants stomping over the public stage, asking us to believe that their private-firm tutus, which might have been appropriate in the very early days when legacy media such as TV and newspapers overshadowed them, mean that whatever they decide about their content is their own business because it affects so few people.
The tutus no longer fit, if they ever did. Big Tech now operates a lot of 900-pound gorillas, to mix the animal metaphor, who do exactly as they please with regard to content that currently will not gain attention any other way than being filtered through the social-media monopoly. The Texas legislation is one state’s attempt to make dealing with social media a little less unfair.
I note a disturbing trend of which this controversy is only one example. A nation, to be a nation, must share a common pool of underlying principles or philosophies, in order to endure. By their behaviour in China, for example, Big Tech firms such as Apple, Google, and Facebook make it clear that nations mean little or nothing to them when it comes to the bottom line. Of course they need to stay within the law, but “the law” is a slippery and many-faceted thing, especially when you have deep enough pockets to hire enough lawyers to keep even states busy for years just trying to keep from being overwhelmed with lawsuits.
In past controversies involving freedom of speech in this country, opposing sides could at least agree on the statement, “Well, at least we’re all Americans.” But I have a hard time picturing the leaders of Big Tech freely admitting such a thing even in public, let alone in private. Great wealth confers great power, and as Lord Acton said, power corrupts. It is not yet time to despair that the systems of government that the founders deeded to us can overcome the exercise of raw power with the rule of law, which is all we have to guard ourselves against despotism.
But the upcoming battle over the implementation of HB 20 will be yet another skirmish in the war that is currently being fought over the right of free speech, which Big Tech increasingly wants to define for itself.
Karl D. Stephan is Adjunct Associate Research Professor at the University of Texas at Austin’s Department of Electrical and Computer Engineering.
You may also wish to read: Texas governor signs law curbing big tech censorship. A similar law in Florida was halted by a federal judge. Will Texas’s law face the same legal battle? (Caitlin Bassett)