Red states tackle Big Tech censorship

Last year, congressional lawmakers on both the left and the right talked big about reining in social media companies, questioning and criticizing Silicon Valley CEOs at several different Capitol Hill hearings. But in the end it proved all sound and fury: Section 230 of the Communications Decency Act, the provision that shields internet platforms from liability for user content and allows them to flag or delete offensive content, remains untouched.

But some state lawmakers aren’t waiting for the feds. Texas Rep. Bryan Hughes introduced a bill last week, backed by Gov. Greg Abbott, that would prohibit social media companies from discriminating against a user based on viewpoint. Under the measure, users could sue platforms and obtain court orders barring censorship, as well as recover costs and legal fees if successful.

The Texas bill is the latest effort from Republican-controlled legislatures to address what many see as anti-conservative bias at companies like Facebook, Twitter, Google, and Amazon. Up to two dozen states are currently considering bills targeting social media censorship, according to the National Conference of State Legislatures.

Conservatives cite plenty of anecdotal evidence of bias against them, though the argument isn’t without its critics. Twitter permanently banned President Donald Trump following the riot at the Capitol on Jan. 6. Amazon Web Services shut down conservative social media platform Parler around the same time. And Amazon recently delisted Ryan Anderson’s 2018 bestseller When Harry Became Sally: Responding to the Transgender Moment.

When people try to sue over these incidents, courts often shut down the challenges based on Section 230. On Thursday, the 2nd U.S. Circuit Court of Appeals ruled video-sharing platform Vimeo had immunity from just such a lawsuit. Church United sued for religious discrimination after the platform deleted its account for uploading videos promoting sexual orientation change therapy. Judge Rosemary Pooler wrote that Section 230 “explicitly provides protection” and broad discretion for platforms to restrict content they consider objectionable.

For the most part, tech companies have kept mum on the social media censorship laws percolating through state legislatures. But things have heated up in Texas. Attorney General Ken Paxton launched an investigation into Twitter in early January, requiring the social media company to disclose its internal decision-making processes for banning users. In response, the company last Monday filed a complaint claiming Paxton was unlawfully using his authority to “intimidate, harass, and target Twitter in retaliation for Twitter’s exercise of its First Amendment rights”—that is, its content moderation decisions, particularly the ban on Trump.

Twitter’s preemptive challenge in Texas may be a portent of things to come should any of the state bills aimed at social media companies become law. Most constitutional experts say the tech giants will likely come out on top in any challenge because the First Amendment does not apply to private companies.

But First Liberty Institute counsel Jeremy Dys during March 8 testimony to a Texas Senate committee argued social media is the new town square and subject to the First Amendment. He compared the ubiquitous internet platforms to a company town, noting that the Supreme Court in its 1946 Marsh v. Alabama ruling held the First Amendment protected a person distributing religious literature on the sidewalk of privately owned community.

“Something will have to give at some point,” Dys said. “Either we will use the principles of the First Amendment to allow for a robust dialogue within the social media world, or social media will become a one-sided place where a significant portion of the population doesn’t feel welcome to express a religious or conservative viewpoint.”