To use his words, Texas Governor Greg Abbott has a problem when it comes to censorship and double standards. Governor Abbott recently asserted that Big Tech companies are the ones with a big problem when it comes to censorship and double standards, but those claims could be easily used to categorize one of the host of new laws that the Governor encouraged the Texas legislature to pass to compel speech the government approves and suppress speech the government disapproves – the new social media censorship law, House Bill 20. This unconstitutional law attacks the very companies that facilitate safety and well-being for their users by combating misinformation – the same companies that Governor Abbott is courting to bring good-paying jobs to Texas.
Governor Abbott has praised House Bill 20, signed into law on September 9, 2021, for protecting Texans from wrongful censorship on social media platforms. The law prevents tech companies with 50 million monthly users or more from banning users based on political or religious viewpoints wherever those viewpoints are expressed. The law also requires multiple disclosures about content moderation practices and processes by these companies, sets a 48-hour deadline for the review and removal of illegal content, and creates nearly insurmountable obstacles for email service providers to block spam and other unwanted messages.
While the bill’s supporters may claim the law is protecting the First Amendment rights of Americans, in reality, the law tramples the free speech of private American companies. House Bill 20 is even more draconian than a recent Florida law that a federal judge held unconstitutional on multiple grounds and preliminarily enjoined from taking effect. Judge Hinkle’s injunction against this Florida law set the record straight, stating that “the First Amendment says ‘Congress’ shall make no law abridging the freedom of speech or of the press. The Fourteenth Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional, exclusive public functions.” In short, the First Amendment provides that a state government, like Florida and Texas, cannot abridge the speech rights of a private company, like Google.
The Florida federal court concluded that tech companies are private entities with First Amendment rights of editorial discretion and that state governments do not possess the power to disregard these rights. However, Governor Greg Abbott and the Texas legislature do not seem to care about this federal court ruling or the United States Constitution. They disregarded both by passing House Bill 20 and signing it into law.
Texas taxpayers will bear the financial burden of watching House Bill 20 being declared unconstitutional now that NetChoice and the Computer and Communications Industry Association have filed a lawsuit against the state of Texas to invalidate House Bill 20.
Aside from infringing on companies’ constitutional rights, laws like House Bill 20 make it more difficult and expensive for companies to create enjoyable and secure products for users. Technology companies have stepped up and have made robust investments to keep products family-friendly, clean from hate speech and misinformation, and safe from illegal activity. House Bill 20’s drastic measures could easily impose significant additional costs on tech companies. Preventing companies from moderating content might score Texas politicians some cheap political points, but it will cost users and taxpayers severely. Texas officials should be empowering tech companies to continue their efforts to enhance safety from hate speech and misinformation, not disincentivizing them with costly, unfair, and unconstitutional laws and regulations.
Perhaps the largest insult to tech companies and Texans can be attributed to Governor Abbott’s double standards. He is using House Bill 20 to target and hurt the very companies that he is actively recruiting to invest in the state of Texas. On one hand, Texas is courting tech companies to bring good-paying jobs and economic vitality to the people of Texas, but on the other, the Governor and other Texas officials are on a mission to punish the same companies who could bring those immense benefits to our economy.
It’s time for Governor Abbott to embrace the economic free market principles that have made Texas attractive to so many businesses and stop encouraging the passage of unconstitutional legislation.
Tom Leatherbury is the Director of the First Amendment Clinic at Southern Methodist University Dedman School of Law and Texas counsel to Electronic Frontier Foundation in NetChoice v. Paxton, the constitutional challenge to House Bill 20. The views expressed are his own.