How a Texas law could impact First Amendment rights and online content moderation

In Texas, major social media platforms may soon lose the right to moderate their own content.

“He makes exceptions for harassment, violence, censorship authorized by Section 230 of federal law, which is his own business,” law professor Alan Rozenshtein said.

“But even reading them broadly…Do we want to have platforms where neo-Nazis are still allowed, by law, to say what they say?”

Today, About: NetChoice c. Paxton — and how a Texas law could impact First Amendment rights and online content moderation.


Alan Rozenshtein, associate professor of law at the University of Minnesota Law School. Editor-in-chief at Lawfare. Co-host of the Rational Security podcast. (@ARozenshtein)

Julie Owono, Executive Director of Internet Without Borders and Stanford’s Content Policy and Society Lab. Inaugural member of the Facebook Oversight Board. Affiliated with the Berkman Klein Center for Internet and Society at Harvard. (@JulieOwono)

Interview Highlights

Give us an overview of HB 20. What does this law actually do in Texas?

Alan Rozenshtein: “What the law purports to do, and that may be different than what the law actually does, but what the law purports to do is limit the ability of the biggest social media platforms from, we can call it censorship, we might call it There is a kind of worthless neutral description of the removal of user-posted content based, in quotes, on their point of view.

“That’s the core of what the law does. Additionally, the law imposes transparency requirements on platforms to publicly disclose how they moderate. It requires platforms to put in place processes for users to make appeal of content removals. These are a little less controversial. But the heart and what has caught the most attention, and rightly so, is this restriction on moderation based on a quoted point of view.

I want to talk about the practicality of this. It is not the usual jurisdiction of state law to try to regulate only within a state the operation of these global platforms.

Alan Rozenshtein: “It’s true. And it’s unclear how you could have a patchwork system of state regulations on these big platforms, which are not just national, but global. If Texas has its requirements, and Florida, which has adopted a similar law, has its requirements, but California or Massachusetts have opposite requirements, there’s no obvious way for platforms to run different moderation systems for different users without potentially dividing the platforms into state-based versions, or maybe even platforms just opting out of certain jurisdictions.

“If this law goes into full effect, it’s possible that the platforms will decide that, well, we just can’t operate in Texas. And so they have to block users from Texas. That’s one of the reasons for which some legal observers, myself included, believe there are real constitutional problems behind this law, beyond the potential problems of the First Amendment’s national economy.”

Who enforces this law? How would that work?

Alan Rozenshtein: “The law provides that a user who believes they or their content has been unlawfully removed, or the Texas Attorney General can take legal action against the companies. There is no provision for you can sue for attorney’s fees, but the real primary remedy is that a user, or the state of Texas, can ask a court to require the companies to reinstate a user or reintegrate content.

Is there evidence of an anti-conservative bias on the part of these companies?

Alan Rozenshtein: “As to the kind of question, is there a conservative anti-conservative bias? It’s very hard to know. There’s no doubt that many conservatives are censored, if you want to put it that way , on big tech companies. But a lot of liberals are also censored, and a lot of conservatives have done very well on social media. In fact, a big reason why we’ve seen, you know, the growth of a lot of types of Conservative media is due to their ability to leverage social media.

“And of course, social media has incentives not to censor viewpoints that millions of Americans find interesting. Ultimately, they are for-profit businesses that run on user engagement, like we say, and publicity. So it’s just not even in their interest to systematically censor one side of the political spectrum or another.

“Now there have been, again, high profile incidents. And I think Twitter and Facebook removing Trump from their platforms following the January 6th attack on the Capitol, was enough controversial, frankly, among all kinds of people, not just conservatives. And on top of that, I think there’s a perception, and I think it’s true, that at least culturally, corporations themselves, their employees, they’re certainly to the left of the median American, certainly to the left of the median Texan. Again, though, I’m not sure this translates to systematic censorship of conservatives.

“But I think you can probably say … that tech companies are trying to build platforms that appeal to a broad spectrum of Americans. And as a result, they probably err on the side of censorship when you get to the extreme And here I think to the extent that conservatives have polarized over the last decade, more than liberals, political scientists call it asymmetric polarization. conservative views.

“But again, just to point out, the empirical premise of a lot of these laws, that there is some large-scale anti-conservative censorship, versus anti-liberal censorship, that’s a lot to prove. “

Is there any evidence that better regulation is needed, especially for these big tech companies?

Alan Rozenshtein: “I certainly think so. I’m not someone who reflexively opposes government efforts to regulate, put guardrails around what these big tech companies can do. Because the state of Texas has right when he says that these companies control the digital public square, that these are some of the most important forums of communication in modern society.

“And I think it’s, to say the least, questionable to leave these decisions of monumental importance to large private corporations that operate under the imperatives of the free market. Now, I’m not saying there should be total regulation the devil is in the details, as is the case with so many tech policy and law issues so I definitely think there is room I don’t think Texas law does a very good job, however.

Who should set these rules? Should we rely on the companies themselves?

Alan Rozenshtein: “If companies can come up with good rules, I think that’s good. Often the way to get companies to do something is to threaten to regulate. If in the end, regulation, in quotes, comes companies themselves, rather than the law, kind of who cares?

“But at the very least, I think the relevant party here should be Congress, not the states. Again, because you can’t have a patchwork of state laws. I don’t support state laws. that try to limit what companies can moderate. I also don’t support state laws on the other side that try to force companies to remove election misinformation or vaccine information. I just think that this is not a problem for the states.

Related reading

Law : “The Fifth Circuit’s Social Media Ruling: A Dangerous Example of First Amendment Absolutism” – “On Sept. 16, the Fifth Circuit issued its opinion in NetChoice v. Paxton, upholding the controversial Texas law that limits the ability major content-moderated social media platforms and also imposes disclosure and appeal requirements on them.”

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