Twitter, Facebook and YouTube can be sued for discriminating ‘against expression': Is Texas ruling right?
- On May 11, 2022, a federal appeals court reinstated a Texas law (HB20) that allowed state residents to sue Facebook, Twitter, and YouTube for censorship or from discriminating “against expression.” The law was initiated by Twitter’s ban of President Trump after the Jan. 6 insurrection at Capitol Hill.
- A Pew Research Center poll released a 2020 study noting 73% of Americans believe social media companies are “censoring political viewpoints they find objectionable.” Ninety percent of Republicans think this is true while only 19% of Democrats believe the same.
- Facebook and YouTube were the most used social media platforms in 2021 according to Pew Research, with Instagram, Pinterest, and LinkedIn following relatively close.
- Elon Musk bought Twitter at $44 billion on April 25, 2022 to make the company private. He announced, “Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated.”
Texas presents HB 20 as a way of protecting speech online from the overzealous censorship of social media platforms, yet the law as written accomplishes almost precisely the opposite. Forcing private companies to publish speech they do not want is, in fact, an undeniable First Amendment violation, as established by the Supreme Court in Rumsfeld v. Forum for Academic and Institutional Rights. On this basis, a Texas district court placed an injunction on HB 20 in the first place.
Beyond the constitutional violation, the law itself is worded so broadly that it makes enforcement nearly impossible. The law demands that no user be banned for their 'viewpoint,' with no further specification of what a viewpoint entails. This could then force platforms to either publish all speech, including hate speech, harassment, and brigading since none of those are explicitly illegal or virtually nothing at all.
Further, it could force platforms to provide access to users who actively spread misinformation or advocate violence. After all, verbal support for pedophilia or violent revolution is certainly 'viewpoints' protected by the First Amendment. Would YouTube be forced to carry videos from NAMBLA? Would Facebook have to platform incels who support killing women as long as those threats aren't imminent?
And since the law allows any Texas citizen to sue social media companies to enforce compliance with little legal recourse for defendants, this opens the door to endless bad faith lawsuits. This could result in, say, a stalker suing a social media company that won't allow him to harass his ex on their platform or the KKK suing to spread anti-Semitic conspiracy theories as a legitimate 'viewpoint.' This law is ill-conceived and likely to bring more havoc than it aims to solve.
The Fifth Circuit Court of Appeals recently upheld a Texas law prohibiting large social media companies from removing political speech allowing citizens to now sue those large social media tech companies that remove posts that express a particular viewpoint. This ruling supports the contention of countless conservatives that many social media platforms have a left-wing bias and do not apply their rules uniformly. This bias then colors decisions made to suppress certain tweets or posts, suspend accounts, or outright ban accounts that don't conform to a certain ideological viewpoint.
If violations of stated rules are applied uniformly across the board, then large social media companies have little to fear from the Texas ruling. However, they have clearly not been applying their rules in such a manner. Instead, they have been doing it arbitrarily, very often to those tweets or posts that do not fall in line with the ideological point of view of the social media company and/or its employees.
Up to now, Section 230 of the Communications Decency Act has protected social media companies from being held liable for content that users post. Hiding behind Section 230 has allowed those social media companies to police and, therefore, restrict or censor content with impunity.
The New York Post's Twitter account suspension over a factual story about Hunter Biden's laptop was one of the most egregious examples. Yet, Twitter allowed tweets that were contrary to the NY Post's factual assertions—and clear disinformation—to remain in place. Perhaps the threat of being sued will require large social media tech companies to do what they should have been doing all along—applying their rules uniformly, regardless of political leanings.