Op-Ed: Another bad Texas idea: Make it illegal to take down vicious social media content

On Thursday, the U.S. Court of Appeals for the 5th Circuit reinstated a Texas law, HB 20, that forbids social media websites with more than 50 million monthly U.S.-based users from limiting access to posts made by Texans on the basis of “viewpoint.�

Although the Texas law does not define “viewpoint,� it is meant broadly to prevent large social media platforms from excluding speakers or their messages based on the position they take, no matter how extreme.

The Texas law is clearly unconstitutional in regulating the speech of private media companies and poses a grave threat to the functioning of the internet and social media.

On Friday, two technology trade groups filed an emergency request in the U.S. Supreme Court to stop the law from going into effect. Justice Samuel A. Alito Jr. asked Texas to respond by 5 p.m. on Wednesday. If the justices do not issue a preliminary injunction, the law will be in effect and can be immediately enforced by Texas.

Gov. Greg Abbott signed HB 20 into law in September, partly in response to Twitter’s removal of Donald Trump’s twitter account. Abbott said the aim of the law was to quell a “dangerous movement� to “silence conservative views.� The claim that conservative views are silenced on social media has been repeatedly disproved. In December, a federal district court in Texas, following long-established precedent, struck down the law as unconstitutional.

Courts long have recognized that the 1st Amendment prohibits the government from compelling private entities to express messages they disagree with. In 1974, in Miami Herald vs. Tornillo, the Supreme Court struck down a Florida statute that intruded into the editorial discretion of a newspaper by forcing the paper to publish a political candidate’s response to an editorial run by the paper. Whether “fair or unfair,� the court wrote, the Constitution protects “the exercise of editorial control and judgment.�

This is why the decision by the federal appeals court to reinstate HB 20 is so alarming. Forcing a private company — whether Facebook, Twitter or a newspaper — to communicate a message violates the 1st Amendment.

Applying this principle, a federal court last year struck down a similar Florida statute that attempted to restrict content moderation on politics-related posts and accounts by social media companies. That court also rightly held that the Florida law conflicts with a federal statute, Section 230 of the Communications Decency Act, which protects social media platforms from liability for their content moderation choices and expressly invalidates conflicting state laws. It makes no sense to allow each state to impose its own regulations over national media.

As in the Florida case, federal district Judge Robert Pittman blocked the Texas law on 1st Amendment grounds. The 5th Circuit Court heard oral arguments in the appeal on May 9 and, without explanation, voted three days later to allow the law to go into effect.

This law would make websites subject to it unusable. Social media companies do an enormous amount of content moderation. For example, from October to December 2021, Facebook says it took action against terrorism content 7.7 million times, bullying and harassment 8.2 million times, and child sexual exploitation material 19.8 million times.

Some of the content moderation is required by law, such as laws prohibiting child pornography or copyright infringement. But a great deal of the content is lawful speech that users do not want to see and Facebook does not want to host. Spam, harassment or posts advocating violence or terrorism that do not meet the test for incitement may not violate a law, but most users do not want them on the site.

Yet because much of this lawful but awful content expresses a viewpoint, if those posts are made by anyone who lives or does business in Texas, Facebook and social media companies would no longer be able to take them down.

For example, when the suspected gunman in Buffalo, N.Y., started to livestream the attack on Saturday, the streaming platform Twitch removed the livestream and suspended his account within two minutes. However, if the shooting had happened in Texas, Twitch might have been reluctant to take it down because removing it could have been considered an illegal response to the shooter’s expression of racist views.

When Judge Pittman initially blocked HB 20 from taking effect, he noted, “HB 20 prohibits virtually all content moderation, the very tool that social media platforms employ to make their platforms safe, useful, and enjoyable for users.� Unless the Supreme Court reverses the appeals court’s decision, HB 20 will prohibit the largest websites from making their platforms safe or usable.

The irony is that the Texas law, which was intended to protect free speech by ensuring that conservative viewpoints are allowed on social media platforms, is an enormous threat to freedom of expression. If a state can impose this requirement on social media companies, it could likewise control content in newspapers and other private media companies by prohibiting them from excluding speech based on viewpoint.

The decision by the 5th Circuit Court must not be allowed to stand. It is urgent that the Supreme Court justices block HB 20 from going into effect and declare it unconstitutional.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. Alex Chemerinsky is a law clerk to a federal judge.