Proposed state senate bill on social media raises legal concerns

State senate bill 12 would allow for users to sue social media companies for censoring user-created posts which would contradict federal law.
Published: Mar. 9, 2021 at 7:07 PM CST
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BRYAN, Texas (KBTX) - State lawmakers are continuing to wage war on censorship in social media in the state legislative session this week.

Last week, Gov. Greg Abbott came out in support of state senate bill 12. The bill would allow Texans to sue social media companies if they feel they’ve been wrongly silenced. The proposed bill prohibits social media companies including Facebook, Twitter, and Youtube from blocking, banning, de-monetizing, or otherwise discriminating against a user based on their viewpoint or their location within texas. It would apply to anyone who lives in, does business in, or has social media followers in Texas.

Critics of the bill argue that removing content restrictions could open the door for children to be exposed to harmful content from malicious social media users.

The author of the bill, state senator Bryan Hughes, says his legislation would only apply to political and religious speech.

TechNet, an industry association, said removing content restrictions could open the way for children to be exposed to “harmful content of ill-intended users online.” That’s because the bill could de-incentivize social media companies from removing hate speech, vulgar or lewd posts, and other malicious content in order to prevent potential lawsuits that could arise from censoring those posts.

Gov. Abbott argues, “what Facebook and Twitter are doing they are controlling the flow of information and sometimes denying the flow of information and they are being in the position where they are choosing which viewpoints are being allowed to be presented. Texas is taking a stand against big tech political censorship. We’re not going to allow it in the lone star state,” and continues, “the United States of America was built on freedom of speech and healthy public debate. Big tech’s efforts to silence conservative viewpoints is un-American, Un-Texan and unacceptable, and pretty soon against the law in the state of Texas.”

Republican politicians have long targeted technology giants, accusing them of an anti-conservative bias and for silencing free speech.

Facebook CEO Mark Zuckerberg testifies before a joint hearing of the Commerce and Judiciary...
Facebook CEO Mark Zuckerberg testifies before a joint hearing of the Commerce and Judiciary Committees on Capitol Hill in Washington, D.C. in June 2020.(WTVG)

Legal experts believe that even if this legislation were to pass, user agreements by social media companies would still protect the platforms from lawsuits.

Additionally, the first amendment, which protects free speech, only prohibits government censorship. That leaves private companies, like Facebook and Twitter, to choose their own protocols.

Texas A&M political communications expert Kirby Goidel joined First News at Four to break it all down.

Goidel says there’s not much evidence to support Gov. Abbott’s claim that there is a social media bias against conservative ideology.

“If anything, there’s some, there’s some pretty strong evidence that Facebook, in particular, is biased in favor of conservative viewpoints,” Goidel said, “conservatives are concerned about social media being biased against them, and they believe that social media are biased against them in overwhelming numbers but that doesn’t mean it’s true.”

He says there are some high-profile cases, like former President Trump’s ban from Twitter. But he says there’s no empirical data to support the argument that social media is inherently biased against either conservatives or liberals.

Former president Donald Trump was officially banned from Twitter on Jan. 8, 2021.
Former president Donald Trump was officially banned from Twitter on Jan. 8, 2021.(Source: @Twittersafety/CNN)

Gov. Abbott claims state senate bill 12 will expand and protect freedom of speech in online environments, but Goidel says that may not actually be the case.

“It’s not clear at all that it would help conservative viewpoints on Twitter on social media,” Goidel explained.

He says the bill actually contradicts federal law. Section 230 of the Communications Decency Act shields technology companies from liability for content users post on their platforms. That prevents users from being able to sue social media companies, which senate bill 12 would allow for. Goidel says even if the bill “wires around” federal law, as Gov. Abbott claims, it still might not create more protection for certain viewpoints on social media.

“By going after social media, what you’re saying is that private businesses can’t control what they allow on their own platform,” Goidel explained, “and the First Amendment has largely been about government censorship and not about private businesses. [State senate bill 12] says the government can come in and say what private businesses should allow or should not allow. And if there is a free-speech right in saying that someone should have a right to be on the platform certainly the platform has a right to say it’s not going to support certain speech.”

He says private social media companies are allowed to decide what speech is acceptable on their platforms. Similarly, a small business owner has the right to deny someone service for using profane or vulgar language in their store. Facebook and Twitter do not have to honor the first amendment’s protection of free speech because the first amendment applies only to government censorship. Goidel says that because the user agrees to the terms of each company before using their platforms, social media companies have extra insulation from claims of censorship.

According to a study by the Notre Dame Law review, “in practice, these Terms of Service contracts may have wider reaching consequences. Users by and large do not contemplate that Terms of Service contracts can affect their ability to redress some types of government action against some of their speech acts online.”

Goidel says it’s not necessarily what is said or the ideas being expressed that provokes social media companies from removing posts but rather, “it’s the way that they’re being expressed, especially when it comes to politics.”

But Texas isn’t alone in proposing legislation regulating social media. Goidel says there are similar pieces of legislation in Florida, Kentucky, and Oklahoma that all look to limit the censorship abilities of private social media companies.

Twitter CEO Jack Dorsey, Facebook CEO Mark Zuckerberg, and Google CEO Sundar Pichai will all...
Twitter CEO Jack Dorsey, Facebook CEO Mark Zuckerberg, and Google CEO Sundar Pichai will all testify before members of the House Energy and Commerce Committee on March 25 about false claims concerning the COVID-19 vaccine and supposed election fraud on social media platforms.

“These companies aren’t very popular. A lot of people look at them with suspicion on both the left and the right. So they’re an easy target in a lot of these places.”

He says it seems like states that are generally more conservative are more likely to draft legislation aimed at social media companies. Goidel speculates that’s because a majority of these companies are California-based and therefore are perceived as liberal-leaning. He adds that a growing number of Americans believe social media companies are growing too powerful and want to see regulations limiting their ability to moderate content on their platforms.

“So the public, and especially Republicans, believe that social media is biased against them by really overwhelming numbers,” Goidel said, “and they believe that these companies are too powerful and so they have an unfavorable view, they’d like to see more regulation they’d like to see that conservative viewpoints are protected.”

State senate bill 12 had its first hearing before the State Affairs Committee on Monday.

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