Explained | The legal debate around a Texas law for social media platforms | #socialmedia

The Texas law for social media platforms (H.B. 20) mandates that companies cannot censor any post based on an individual’s political viewpoint, and requires them to submit biannual reports about content regulation on their platform.

The Texas law for social media platforms (H.B. 20) mandates that companies cannot censor any post based on an individual’s political viewpoint, and requires them to submit biannual reports about content regulation on their platform.

The story so far: Last week, internet advocacy groups NetChoice and Computer & Communication Industry Association (CCIA), representing Facebook, Twitter and YouTube, filed an emergency request in the U.S. Supreme Court seeking to block a Texas law that disallows platforms from censoring users based on their political views. A district court’s stay on the law was overturned by the 5 th U.S. Circuit Court of Appeals on May 11 in a 2-1 verdict. 

The Texas law further directs social media platforms to publish a biannual transparency report detailing how they managed their content dissemination. This would apply to all platforms with more than 50 million active monthly users. 

Carl Szabo, general counsel for the advocacy groups, argued that Texas law H.B. 20 is an “assault” on the First Amendment of the Constitution which guarantees freedom of speech. In their emergency request, the advocacy groups pleaded for the Court to “allow the District Court’s careful reasoning to remain in effect while an orderly appellate process plays out.” 

Texas Governor Greg Abbott had signed the law into effect in September 2021. About a fortnight later, NetChoice and CCIA sued the State of Texas alleging that the law was “unconstitutional”. In December 2021, a federal District Court issued an injunction stating it was “constitutionally flawed.” The State moved the Fifth Circuit Court of Appeals against this order – which won them a reversal of the injunction.  

Governor Abbot while signing the law said, “It is now law that conservative viewpoints in Texas cannot be banned on social media.”  

According to the plaintiffs, this left service providers with Hobson’s choice: those who voluntarily filtered some messages would become liable for all messages transmitted, so ignoring such a scenario by looking away from ‘problematic posts’ was the only way to escape.  

How is censorship relevant here?  

The State of Texas stated that each person had a fundamental interest in the free exchange of ideas and information, including the right to gather them. Social media platforms are essential forums for public debate.

It argued that H.B. 20 would ensure platforms do not censor a user or his/her expression based on their political viewpoints, or geographical location. In other words, social media platforms would have to host content from both sides of an ideological spectrum without any editorial curation from their end.

NetChoice said the Act would trample on the first amendment by allowing the government to force platforms to host speech they might not want to, against their will. Social media platforms have policies at their core that guide how they regulate content so as to not cause social harm. For example, in 2021, Twitter permanently suspended former U.S. President Donald Trump’s account due to “the risk of further incitement of violence” after the January 6 attack on the U.S Capitol.

Making public disclosure of information compulsory  

The other provision deals with public disclosures. The Texas law would require social media platforms to publicly disclose accurate information about their business practices, and how they manage content and data. This includes content curation, promotion (of content, products and services on its platform), acceptable community guidelines and the use of algorithms for ranking and placing content. Further, the law asks platforms to publish a biannual report detailing all violations in a given period, the type of violation, its source and any actions taken.  

As for its implementation, platforms would have to act within 48 hours of being flagged about an alleged content violation. Additionally, should the author of a post contest the censorship, platforms would have fourteen days to either review and notify the user about the reason for continuing the retraction or reinstate the content. 

NetChoice argued in court that the provision enforced burdensome disclosures and operational requirements. “It unconstitutionally requires platforms to provide notice  every time they remove speech—and provide a complaint-and-appeal process subject to short deadlines,” it argued.

It pointed out that YouTube had removed 9 billion videos from its platform in a single quarter in 2020 while Facebook pulled down over 40 million posts related to bullying, harassment and hateful content over a similar period in 2021. H.B. 20 asks platforms to institute a redressal process for each of them, thus making it ‘burdensome’.

According to the appellant, this would also discourage competition in the industry.  

The State’s case for free speech  

The two parties have distinct perspectives on the role of social media in disseminating free speech. 

The attorney for the State of Texas argued that requiring someone to host another person’s speech “is often a perfectly legitimate thing for the Government to do.” The attorney added that it is the duty of the state to ensure that private interests do not restrict a critical pathway for communication.  

The State of Texas alleged that after achieving digital dominance, platforms have begun to discriminate on the basis of viewpoints. With this law, they endeavour to avert a “discriminatory dystopia where large corporations punish speakers with idiosyncratic views.”

Arguing that platforms have discriminated against American viewpoints in favour of foreign adversaries, it said that Facebook censored Americans who suggested that the coronavirus originated in China’s Wuhan laboratories, while the Communist Party was allowed to publish claims about Americans making the virus.

Further, it accused social media platforms of bias, especially in favour of federal bureaucrats, alleging that they did not censor content where they openly advocated for ‘off-label’ usage of drugs (using drugs for conditions other than those mentioned on the label) for treatment of COVID-19 symptoms. 

The State of Texas, quoting from a previous judgement, said “Our political system and cultural life rest upon the ideal that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” The brief added that speech cannot be restricted because it upsets or arouses contempt. Therefore, the Internet’s own speech may emerge as a subject of scrutiny when it attempts to shape another’s speech, it said.  

The advocacy groups and their case for free speech  

On the other hand, the plaintiffs contested this claim stating that freedom of speech also includes what not to say. Therefore, the platform’s discretion as to what it publishes and how it curates conveys a message about what content it finds acceptable. Editorial discretion also ensures users are not exposed to hate speech, misinformation, or irrelevant or less informative posts, according to the plaintiffs.  

They contended that this law is an attempt to subvert the platform’s editorial policies to the one preferred by the Government. “It is a content-, viewpoint-, and speaker-based law that would eviscerate editorial discretion, impermissibly compel and chill speech, and impose onerous disclosures on select disfavoured social-media platforms,” they argued.  

Social media companies exercise editorial discretion by controlling access to their platforms, what content is made visible and how it is presented to users. This is done by adhering to a case-specific approach and not treating all content in the same fashion. It also involves ranking content on the user’s ‘feeds’ as per their individual preferences, while ensuring that it reflects accurate information and not disinformation. 

According to CCIA and NetChoice, platforms should not be viewed as ‘mere conduits’ (as put forth by the State of Texas) with no responsibility for the content published. “The record confirms that when platforms have failed to remove harmful content, their users and advertisers have sought to hold platforms accountable—including through boycotts,” they said. 

The plaintiffs argued that that the multiplicity of views in this case could also mean that platform might be expected to disseminate pro-Nazi expression on equal terms as Holocaust remembrance posts. Forcing the platform to also put out speech it finds objectionable amounts to compelling platforms to speak – signalling to the user that the platform finds the idea acceptable, they argued.

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