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Texas’ social media censorship bill pushes unconstitutional limits on free speech


Amid ongoing allegations that social media platforms are censoring conservatives, regulating Big Tech has become one of the hottest issues across the country. In Texas, Gov. Greg Abbott has called a special legislative session in part to debate and pass content moderation legislation.

The legislation contemplated would be similar to Senate Bill 12, which died at the last minute during the recent legislative session. As proposed, it would prohibit social media companies from blocking users based on their viewpoints or their locations within Texas and impose attorneys’ fees on those companies that do. Unfortunately, this proposed legislation does more to harm free expression in Texas than it does to protect it.

The U.S. Supreme Court has consistently held that the government cannot regulate or punish the speech of private actors under the First Amendment absent viewpoint-neutrality, a compelling state interest, and narrow tailoring, among other things. Yet, content moderation bills such as SB12 violate the Supreme Court’s First Amendment jurisprudence on all counts.

The legislation would force social media companies to host and maintain content that goes against their own terms of service or user policies. Doing so serves no compelling state interest, and, despite the addition of multiple exemptions and exceptions during the legislative process, it’s the antithesis of narrowly tailored.

Many advocates for legislation such as SB12 claim that it passes constitutional muster because social media platforms are common carriers. This couldn’t be further from the truth. These platforms are not public utilities or railroads.

Since the 1990s, the companies that operate these platforms have limited who can use them and the content that they will host, and the companies have outlined those expectations in their terms of service agreements. Private companies have First Amendment rights against government compulsion to carry speech of which they don’t approve.

SB12 goes further and penalizes social media platforms simply for removing harmful content. While the language in SB12 provides that no social media platform can remove content because of “the viewpoint of the user or another person,” this will lead to unintended, dangerous scenarios. For example, a platform could face stiff penalties for restricting or removing indecent content or hate speech or misinformation spread deliberately by a foreign government, even though the platform simply wanted to make itself more trustworthy, family-friendly, or less offensive.

We have seen similar efforts in other states already fail to pass legal scrutiny. Recently, a federal court in Florida held that a content moderation bill passed by the Florida Legislature and signed into law by Gov. Ron DeSantis was unconstitutional and in violation of federal law and granted a preliminary injunction to stop the bill from going into effect. We should be asking why Abbott and Texas Republicans are trying to pass a similarly misguided and unconstitutional piece of legislation that could cost the state at least six figures to defend unsuccessfully.

While it is tempting to act on issues that are popular in the moment for political gain, effective policymaking requires measured solutions instead of reactionary populism. Legislation like SB12 promises detrimental effects that curtail the ability of private social media platforms to moderate their own content; threatens to make the internet a more unreliable, extremist arena; and is unlikely to withstand inevitable, swift, and vigorous constitutional challenges.

I encourage Abbott and the proponents of this bill to further examine the damaging implications, unintended consequences, and blatant unconstitutionality of such legislation and to reconsider their positions.

Tom Leatherbury is director of the First Amendment Clinic at the SMU Dedman School of Law and co-head of the appellate practice group at Vinson and Elkins. He wrote this column for The Dallas Morning News.

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