Texas Senator Pushing A Bill That Would Allow The State To Sue Twitter For Banning Conservatives

Legal Issues

from the wrangle-them-windmills,-Senator dept

Since some conservatives are convinced social media companies are trying to turn their platforms into liberal paradises, weird and ignorant noises are being made by a handful of government figures. I blame Ted Cruz.

Last year’s Facebook hearing was marked/marred by Republicans incorrecting [h/t n-gate] each other about Section 230 immunity and its supposed reliance on Twitter, Facebook, et al maintaining their position as “neutral public forums.” Section 230 does not require this, but it’s become somewhat of a DC urban legend at this point. Since this highly-inauspicious beginning, the Senator from Texas has pitched a “Fairness Doctrine” for the internet and aligned himself with Rep. Louie Gohmert to misunderstand the internet as much as possible.

Back at the state ranch, a member of the Texas Senate has decided he’s going to force social media platforms to be neutral. Bryan Hughes has crafted a bill that would allow the state’s attorney general to sue Twitter, etc. for booting people off their platforms. There’s a big “if” in the bill that pretty much ensures it will never be enforced, even if it somehow manages to survive a Constitutional challenge.

“Senate Bill 2373 tries to prevent those companies that control these new public spaces, this new public square, from picking winners and losers based on content,” Hughes said in the committee hearing. “Basically if the company represents, ‘we’re an open forum and we don’t discriminate based on content,’ then they shouldn’t be able to discriminate based on content.”

This is Hughes’ attempt to route around Section 230 while co-opting Ted Cruz’s completely wrong assumption that those protections are tied to platforms maintaining political neutrality.

If a social media company claims it’s an open, neutral forum but performs any act of moderation Texas government officials don’t like, the state AG can bring a lawsuit against the company. The violations include all of the following [PDF]:

(1) block a user’s speech;
(2) censor a user’s speech;
(3) ban a user;
(4) remove a user’s speech;
(5) shadow ban a user;
(6) de-platform a user;
(7) de-boost a user’s speech;
(8) de-monetize a user; or
(9) otherwise restrict speech of a user.

So, pretty much any moderation effort would trigger this. As would any perceived moderation. Or anything any platform does that feels subjectively to the user like any of the things on the list, whether or not it actually happened.

Platforms are still free to remove content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” It’s not difficult to see how protected moderation efforts could clash with unprotected moderation efforts, leaving it up to the Texas AG’s discretion whether or not a moderation effort was “good faith” or a violation of Hughes’ stupid law.

But let’s get back to the “if.” This law relies on a social media company “representing” that the service is “viewpoint neutral, impartial, or non-biased.” Represent how? Wouldn’t the state need something a bit more legally-binding than Jack Dorsey saying something to that effect during a conversation with an interviewer or state legislators? Maybe a signed affidavit, especially since this whole thing is going to be running through the state’s courts? The bill provides no clarification on this point. Without more than what’s present here, it seems any social media company could avoid having this idiotic law wielded against them by simply stating they will continue to moderate their platforms to “provide the best user experience” or whatever.

You’d think something this unconstitutional and dumb wouldn’t make its way past the initial grandstanding that accompanies far too many legislative submissions. Unfortunately, even the dumb is bigger in Texas.

Senate Bill 2373 would apply to social media companies that claim to be impartial and unbiased, and the measure was motivated by complaints of discriminatory treatment by conservatives and conservative groups, said the bill’s author, Sen. Bryan Hughes, R-Mineola.

“If you hold yourself out as being an open forum and that you don’t discriminate based on viewpoint, then you have to keep your word,” Hughes told the Senate.

The Senate voted 18-12 to send SB 2373 to the House. All Republicans but Sen. Kel Seliger, R-Amarillo, supported the bill. Democrats were united against it, with Sen. Eddie Lucio Jr. of Brownsville absent.

The bill now heads to the House. Who knows what will happen once it’s reviewed there. Maybe the other half of the legislature will realize the bill is doomed for failure, even if it is passed and enacted. Senator Hughes may be pitching this as an extension of the state’s deceptive trade practices law, but any attempt to enforce it will result in a Constitutional challenge the state cannot hope to win.

Filed Under: bias, bryan hughes, cda 230, conservative bias, content moderation, section 230, texas
Companies: twitter