Tug-of-War About Free Speech on the Internet

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A Texas social media law, HB20, puts restrictions on social media giants and allows Texans to sue social media companies if they can prove their content is being censored or hidden. The law applies only to Texas at this time. It was conceived due to the perceived discrimination against conservatives and those on the right that their voices weren’t being heard. (Think about Donald Trump’s ban from Twitter). 

HB20 was upheld by a federal appeals court in Texas last month.

But HB20 has now been blocked by the Supreme Court, in a 5-4 vote, which granted an emergency request from tech industry lobbyists NetChoice and Computer and Communications Industry Association, who represent big social media companies, apps, and other tech companies. They challenged the Texas law on First Amendment and other grounds.

Surprisingly, the votes to block the law included Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett. 

The law is now on hold, while tech companies fight it in the federal courts. 

“This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law. We appreciate the Supreme Court ensuring First Amendment protections, including the right not to be compelled to speak, will be upheld during the legal challenge to Texas’s social media law,” Matt Schruers, president of the Computer and Communications Industry Association, said in a statement on Tuesday.

HB20 has been blocked, approved and now blocked again. It restricts social media companies from monitoring content on their platforms (Facebook, YouTube, Instagram, Twitter, etc). It also affects email, apps, feeds like Reddit, and other social media companies. 

The Texas law attempts to challenge decisions about content, decisions that are typically made by the social media platforms. It gives Texans the ability to sue social media companies if their posts and media content are removed, blocked or made inaccessible to viewers. This would allow social media users to say and post just about anything they want, and readers would be more likely to see it, whether they want to or not. 

The Supreme Court ruling on HB 20 blocks Texas Attorney General Ken Paxton’s office, or residents of Texas, from suing social networks that moderate content based on “the viewpoint of the user or another person.” 

The court system’s yo-yo rulings are representative of a tug-of-war about First Amendment (free speech) rights, not only on social media, but potentially in other areas on the internet as well.

The law in Texas was originally blocked by a district court judge in December 2020, because he said it was unconstitutional under the First Amendment. The law was also blocked in Florida. 

Currently, tech companies use algorithmic content filtering and ranking which determines what content is seen by a particular user. Changing this method has ramifications for not only what content is viewed, but for behind-the-scenes advertising revenue, data collection, privacy and more. 

“Texas’s HB 20 is a constitutional train wreck — or, as the district court put it, an example of ‘burning the house to roast the pig,’” said Chris Marchese, Counsel at NetChoice, after Tuesday’s ruling. “We are relieved that the First Amendment, open internet, and the users who rely on it remain protected from Texas’s unconstitutional overreach.”

Should social media companies be allowed to monitor, downgrade or remove hate speech, spam or porn? Some might find that appealing. But many users are not looking for drama and gore when they view their mobile phones several times a day.

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