Judge uses true discretion on social media law
Twelve pages into his Wednesday order blocking this state’s recently enacted social media law, U.S. District Judge Robert Pitman got to the heart of the matter.
“The parties,” Pitman wrote, “dispute whether social media platforms are more akin to newspapers that engage in substantial editorial discretion — and therefore are entitled to a higher level of protection for their speech — or a common carrier that acts as a passive conduit for content posted by users.”
It was the central question underpinning a lawsuit co-filed by the Computer & Communications Industry Association (CCIA) and Netchoice in opposition to House Bill 20 (aka the Freedom from Online Censorship Act), a Gop-driven Texas law designed to prevent tech companies from banning or restricting users based on their “viewpoint,” or how that viewpoint is expressed.
Pitman’s preliminary injunction prevented HB20 from going into effect the following day.
The motivation behind the law was clear from the beginning. Texas Republicans desperately want former President Donald Trump to love them. They also desperately fear his wrath.
So they designed HB20 as a sop to Trump’s ego, an act of revenge against Big Tech companies for booting him after he riled up his base with false accusations that the 2020 election had been stolen from him. His delusional crusade ultimately incited a takeover of the U.S. Capitol by Trump die-hards on Jan. 6.
The situation has intensified a curious and confounding trend: countless conservative Republicans using their social media platforms to complain that conservative Republicans are being systematically blocked on social media.
Even before Trump’s banishment, U.S. Sen. Ted Cruz accused Twitter, Facebook, Google and Youtube of using their power to “silence conservatives and to promote their radical left-wing agenda.”
Cruz’s public objections, however, didn’t prevent him from quietly spending hundreds of thousands of dollars this year for digital advertising on Facebook.
When Gov. Greg Abbott signed HB20 into law three months ago, he called it a blow for freedom of speech, a challenge to “Big Tech political censorship” and a means for those who have been “wrongly de-platformed or restricted to be able to file suit to get back on the site.”
Matt Schruers, president of CCIA, told me back in September that tech companies should have the right to protect their users from toxic material, whether it’s “hateful speech, foreign extremism, government misinformation efforts or people encouraging your kids to eat detergent pods.”
Schruers said it “defies reason” to define those self-policing actions as censorship.
Pitman, a 2014 Barack Obama nominee to the federal bench, explored the issue of how we define communications platforms that have no precedent and don’t fit comfortably into any traditional model.
The judge cited Supreme Court precedent as well as the language of HB20 to conclude that social media platforms are not common carriers, but curators of their content.
“The state’s own basis for enacting HB 20 acknowledges that social media platforms exercise editorial discretion,” he wrote.
Pitman said HB20 violates the First Amendment rights of social media companies by forcing them to include content they regard as objectionable.
The law is a legislative Trojan horse: an act of censorship dressed up as protection against censorship.
It is the use of government power to control the content of private companies. It’s especially rich coming from Republican elected officials who have devoted their careers to championing small government, free enterprise and the rights of private businesses to decide how they conduct their affairs.
In practical terms, it means that someone who devotes their Twitter feed to celebrating the policies of Adolf Hitler or falsely accusing politicians of murder can’t be dropped from the platform, because they’re simply expressing a “viewpoint.”
The Texas law was modeled after a Florida bill passed in May, and signed into law by Gov. Ron Desantis, a Republican star against whom Abbott seems to constantly measure himself.
In June, the Florida law was blocked by a federal judge, hours before it went into effect.
Desantis insisted the Florida law was necessary to stop tech companies from discriminating in favor of their “Silicon Valley ideology.”
Eric Goldman, a law professor at Santa Clara University, blasted the Florida law as a waste of everyone’s time.
“The Supreme Court has made it clear that publishers have the freedom to pick and choose what content they want to publish,” Goldman said. “The bill blatantly seeks to strip publishers of that freedom.”
Goldman was right and everything he said also applies to the Texas law. If we’re lucky, it’ll never go into effect.