AUSTIN, Texas (CN) — Texas Republicans have proposed a bill that would open social media companies up to court-ordered fines for barring users from their platforms. The lawmakers claim the companies are censoring conservative viewpoints, but critics say the legislation is a nonstarter with a "First Amendment problem."
Dubbed "Protect Free Speech on Social Media," Senate Bill 12 is backed by two of the most powerful figures in Texas state government, Lieutenant Governor Dan Patrick and Governor Greg Abbott, both Republicans and Christian conservatives.
"Big tech's efforts to silence conservative viewpoints is un-American, un-Texan, and it is unacceptable, and pretty soon it's going to be against the law in the state of Texas," Abbott said at a recent press conference alongside the bill's author, state Senator Bryan Hughes, an East Texas Republican.
Hughes detailed the bill Monday in a Texas Senate State Affairs Committee hearing in which the panel heard testimony from tech company representatives who oppose it.
Hughes said SB 12 would apply to social media companies with more than 100 million users, such as Facebook, Twitter and Google, the owner of the video sharing site YouTube, which he said are the "modern public square" as the main sources of information about current events and facilitators of public discourse in America.
Hughes claims these companies are guilty of viewpoint discrimination and pointed to Facebook's removal from its platform in 2019 an advertisement from the Texas Senate Republican Caucus touting anti-abortion legislation.
Under SB 12, if one of these companies blocked or restricted a user based on their viewpoint, the user could sue to get back on the platforms and to recoup attorney's fees.
Twitter permanently suspended former President Donald Trump's account after dozens of his supporters stormed the U.S. Capitol on Jan. 6 for two posts it found had violated its "Glorification of Violence" policy because they were "likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol."
The U.S. Capitol insurrection, which left five people dead, also led Facebook to bar Trump from its eponymous platform and its other popular social media platform Instagram.
The company has tapped its Facebook Oversight Board, an independent body that reviews its content decisions, to decide whether to reinstate Trump's accounts to its platforms.
In Monday's hearing, Texas Senator Charles Schwertner, R-Bryan, asked Hughes if tech companies engaging in viewpoint discrimination could be barred from operating in Texas under SB 12.
Hughes indicated it could happen. He said if companies refused to restore a user they had wrongfully "deplatformed" courts could hold them in contempt and fine them. "The court has a lot of power in a case like that," Hughes said.
Facebook and Twitter wield so much influence critics often have to be reminded they are private companies free to regulate content as they see fit.
That right is spelled out in Section 230 of the Communications Decency Act of 1996, which states internet service providers cannot be held liable for restricting access to materials they consider "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."
Section 230 also protects them from liability for content published on their platforms by third parties.
Hughes said a similar bill he introduced in 2019 sought to impose money damages on social media companies under the Texas Deceptive Trade Practices Act for viewpoint discrimination, but that's not allowed by Section 230.
States can regulate websites, Hughes said, so long as the regulation is consistent with Section 230.
"We believe SB 12 is the right way to get folks back online consistent with federal law," he said.
But Steve DelBianco, president of NetChoice, a trade association that represents the tech industry including Amazon, Facebook, Twitter and Google, testified that as private companies they are protected by the same First Amendment rights that prohibit governments from forcing newspapers to carry speech they don't want to.
"They are not held to the First Amendment," DelBianco said. "It restricts governments from imposing conditions on the speech of us as individuals, churches, the Austin American-Statesman, Facebook, Twitter and YouTube."
"In other words the First Amendment protects them from you [the Legislature], it doesn't protect the rest of us from those companies," he continued.
Senator Schwertner circled back to the town-square argument.
"As the town square, should not viewpoints be fully allowed to be expressed on there as long as they are consistent with not being inappropriate regarding content?" Schwertner asked.
He said he believes these companies have gone beyond moderating content into discrimination.
If the bill is signed into law, DelBianco said, it will be struck down.
He cited the Ninth Circuit's affirmation in February 2020 of a trial court's ruling in which Prager University, a producer of conservative educational content, sued YouTube for flagging some of its videos as inappropriate for children.
U.S. District Judge Lucy Koh dismissed the lawsuit, finding that YouTube is not bound by the First Amendment because it is a private forum.
"So courts when they have litigated it they are not looking at Section 230 Senator Hughes, they are looking at the First Amendment," DelBianco said. "It's a First Amendment problem your bill is going to run into."