A battle between Big Tech and Texas

Big Tech again fired back this week at red states’ efforts to quell perceived suppression of conservative views. Two trade associations representing social media giants such as Facebook and YouTube filed a federal lawsuit against a new Texas law that attempts to increase the transparency of social media companies and restrict censorship of user posts.

House Bill 20, which Republican Gov. Greg Abbott signed into law on Sept. 9, bars large social media companies from censoring users because of their political viewpoints. In addition, it requires companies to disclose their content management and moderation policies. If a platform removes a user’s content, it must provide him or her with a complaint and appeals process and say why the content was removed.

The law offers two main exceptions to the rule: It allows social media companies to censor certain content to prevent the sexual exploitation of children or the harassment of sex abuse survivors, along with content that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.”

The two trade groups, NetChoice and the Computer & Communications Industry Association, filed a legal complaint last week in federal court arguing that the Texas law violates the free speech rights of their members, including Google, Twitter, and Facebook. The associations say the law’s broad prohibition of censorship based on a user’s “viewpoint” is too vague and could prevent social media companies from policing extremist content such as pro-Nazi speech or terrorist propaganda.

“These restrictions—by striking at the heart of protected expression and editorial judgment—will prohibit platforms from taking action to protect themselves, their users, advertisers, and the public more generally from harmful and objectionable matter,” contend the challengers.

Yet others protest that liberal bias in Big Tech has resulted in multiple instances of censorship of conservatives—with companies removing user content or banning users for posts deemed out of step with the progressive agenda. The Babylon Bee, a Christian satire website, filed an amicus brief earlier this month in a similar challenge by the tech giants to a Florida law restricting social media companies. A federal judge barred implementation of that law earlier this month, calling it “too large and too liberal,” but the state has appealed.

The Bee, along with its nonsatire news site, Not the Bee, argued that “social media platforms systematically target conservative users and messages for censorship, selectively invoking vague policies against ‘hate’ and ‘misinformation’ to stunt the free flow of information and silence conservative voices.” Bee attorneys contend that the companies do not merit the civil immunity provided by Section 230 of the 1996 Communications Decency Act. They want the platforms’ broad right to moderate content curtailed—a view many conservative legislators in Congress share.

Some observers question that approach. Commenting on the Texas law earlier this year in the libertarian magazine Reason, senior editor Robby Soave wrote, “Legislation aimed at hurting social media companies will ultimately end up hurting the kinds of speech that have flourished on Facebook and Twitter but would not have been published in mainstream media outlets. If anything, that’s disproportionately likely to be right-wing speech.”

Some point to the irony of Big Tech’s defense of censorship when evidence has emerged that Facebook has for years given a pass to high-profile users, treating them differently than other users of the platform, according to a recent Wall Street Journal report.

Given the outsized influence social media companies have on public discourse, legal challenges by red states, even if unsuccessful, will continue to keep the issue before the public—and, perhaps, more importantly, before Congress.